Chit Chit Than v SafeWork NSW & Anor

Background

1. Ms Than is employed within the LHD, as a Mental Health Nurse in the Unit. She is a Registered Nurse having qualified in or around 2005. Ms Than has worked in mental health nursing for more than sixteen years. She is an elected HSR for her workgroup.
2. The Unit is an acute mental health inpatient facility, which provides short-term care for adults experiencing acute episodes of mental illness. As a declared mental health facility under the Mental Health Act 2007 (NSW) ("Mental Health Act"), it is required to treat patients who are detained involuntarily in accordance with Chapter 3, Part 2 of the Mental Health Act. Approximately 75% of its patients are involuntary patients. The Unit has 24 beds, 18 of which are in an Open Area and six of which are in an Observation Area. The Observation Area is available for patients presenting with higher levels of acuity.
3. Patients of the Unit are typically suffering from major depressive episodes, bipolar disorder, personality disorders, eating disorders, psychotic illnesses like schizophrenia, and have psychosocial circumstances, such as a life crisis where there is a risk to themselves or others. Some patients present to the Unit on multiple occasions.
4. The Maitland Hospital is a new premises. Staff moved to the new Hospital on 19 January 2022.
5. On 27 June 2022, Ms Than, an elected HSR, issued a PIN on the LHD, in relation to the Unit, in accordance with s 90 of the WHS Act. The LHD was the person conducting a business or undertaking ("PCBU") to which the PIN was directed.
6. The PIN was produced on a model template form. It states that Ms Than "reasonably believe[d]" on 19 January 2022 that the LHD had contravened s 19 of the WHS Act "in circumstances that make it likely that the contravention will continue or be repeated".
7. The PIN was stated as being issued on 27 June 2022, with a date for compliance eight days later, on 5 July 2022.
8. At Attachment A of the PIN, under the heading, "Brief description of how the provision is being or has been contravened", the PIN stated: "The physical safety and psychological wellbeing of staff are at risk due to the directions by senior management requiring workers to work in isolation in the MHU 'observation area', where there are high rates of physical and verbal abuse from patients. Staff in this area are working with patients that are very acutely unwell, and who pose significant violence and aggression risk, with those risk levels changing regularly and without warning. There have been previous incidents of extreme patient violence and aggression towards staff in Maitland mental health which demonstrates the level of risk. Unsafe systems of work in the observation area include (but are not limited to): • Management direction that one worker to remain in the observation area at all times, which necessarily results in staff working in isolation • Duress alarm / "Zebra" phones not activating in certain locations of the observation area meaning staff may or may not be able to summon a duress response when required - compounding risks from working in isolation • Minimal line of sight through observation area, particularly from the nurses' station, further escalating risks from working in isolation • CCTV cameras identified as a control measure for line of sight issue, however there is no staff member to monitor the footage to observe any escalation in risk, so it is an ineffective measure. • sound proofing installed for the obs area resulting in staff working in the nurses' station being unable to hear any calls of distress or shouts of aggression - whilst there is a sound system to transmit sound from the observation area into the nurses' station, it switches off after a couple of minutes at a time, so staff need to remember to continually switch it back on. • Compounding all of the above, there is currently no admission or exclusion criteria for the unit, resulting in a level of patient acuity that cannot be safely managed. A model of care setting out clear admission and exclusion criteria would ensure that the ward is staffed appropriately for the acuity of patients admitted. A review of the last two months IMS+ reports reflect that these risks are not being managed, so far as is reasonably practicable."
9. The PIN provided for the following "Actions to remedy or prevent contravention": "Actions to remedy or prevent the contravention Given the staff's high levels of risk and exposure to violence and aggression in the MHU observation area, the employer, in consultation with staff and their representatives, must undertake a review of the risks to identify and assess the risks and mitigate the risks, as far as is reasonably practicable. Reasonably practicable changes to improve safety and minimise the ongoing risks of exposure to violence and aggression, include: • Ensuring three staff are allocated to the observation area at all times, and systems of work put in place so that no staff member is [never] working alone (in isolation) in the observation area. • Ceasing the averaging of staffing across the observation area and the acute unit that serves only to misrepresent the number of staff that are actually available to each unit • Development of a model of care in full consultation with staff with clear admission and exclusion criteria. • Ensuring that the duress alarms are full (sic) functional and able to summon a duress response at all times."
10. On 4 July 2022, the LHD requested SafeWork NSW to appoint an inspector to review the PIN in accordance with s 100 of the WHS Act. SafeWork appointed Inspector Farmer for the purpose of the review of the PIN.
11. Inspector Farmer attended the LHD on 23 August 2022 for the purposes of conducting the review.
12. On 2 September 2022, Inspector Farmer cancelled the PIN pursuant to s 102 of the WHS Act. Inspector Farmer's reasons for the decision to cancel the PIN are set out in the "INSPECTION REPORT". Under the heading "2. Decision of Inspector Under Part 5 of the Work Health and Safety Act 2011", Inspector Farmer summarised his reasons for his decision to cancel the PIN as follows: "Decision in relation to the PIN I have made the decision to cancel the PIN for the following reasons: 1. Whilst a single issue was identified on the one notice, the identification of multiple alleged unsafe systems of work leading to the issue and multiple actions to remedy the alleged contravention, mean that it is not reasonable for the PCBU to comply with all the elements identified in the PIN by the stated compliance date so far as is reasonably practicable. 2. A reasonable belief could not have been made by the HSR at the stated on or before the date of Reasonable Belief (19/01/22) considering the need for consultation to occur prior to raising the PIN specifically with regards to the operation of the Duress Alarm System. The date of 19/01/22 is the day on or immediately after the Observation area opened. 3. Some of the actions to remedy or prevent contravention identified in the PIN Notice are not within the scope of the PCBU to implement. Specifically the capacity of Hunter New England Health District - Mental Health Unit to develop procedures which do not comply with NSW Health Policy and procedure to which they are compelled to comply. 4. Some of the actions recommended to be taken were in the process of being implemented in consultation with workers, and HSRs prior to the PIN being issued - e.g. Draft Model of Care - Work Practice issued for consultation on 22/06/22 (email from Sam Dunn - Acting Clinical Coordinator) prior to the issuing of the HSRs PIN 5. An action to be taken to remedy or prevent the contravention is not an appropriate control to remedy the risk identified in the PIN. Specifically, Action #2 6. There was insufficient evidence available that the PCBU has directed workers to work in isolation in the Maitland Hospital - Mental Health Unit Observation Area."
13. Inspector Farmer also included the following "General Comment", immediately after his reasons for the cancellation of the PIN: "The drafting of a PIN is not as simple as it seems. I am satisfied that the HSR issued the PIN with the right intentions. The issues were complex due to multiple duty holders (NSW Health and Hunter New England Local Health District), and multiple systems of work cited as contributing factors to the alleged issue. It is always advisable for a HSR to seek advice when drafting a PIN by calling 13 10 50."
14. The Inspection Report documented "Advice provided to the Duty Holder" as follows: 1. I recommend that the PCBU streamline the reporting process for duress alarm concerns raised by staff to ensure that data is collected in a timely and accurate manner considering reports of inconsistent advice regarding reporting processes, and time constraints on staff in undertaking "business as usual" care of patients and operational processes such as the use of IMS. 2. I recommend that the PCBU initiates the operation of the 4d person location technology and initiate a trial of its operation in the Observation Ward in consultation with workers as soon as is reasonably practicable. 3. I recommend that the PCBU implement multiple means of providing feedback/consultation/outcomes of decisions. Best practice communication models include multiple communication strategies to facilitate consultation (for example email, Teams, Yammer, Notice Boards, Meetings) in order to consider shift work, reluctance to read email due to workload constraints, capacity of staff to access and use technology etc 4. I recommend the PCBU investigates potential blind spots and line of sight issues for workers within the Observation Area's Lounge/Activity Room (who do not have access to CCTV display whilst working within the Observation Area), principally in front of the Observation Area's isolation room and corridor and consider the installation of fixed concave mirrors that after assessment may address the risk.
15. On 2 September 2022, Inspector Farmer issued an Improvement Notice ("IN") pursuant to s 191 of the WHS Act on the LHD. The IN stated that Inspector Famer formed a reasonable belief on 23 August 2022 that the LHD was contravening s 19 of the WHS Act and cl 38 of the Work Health and Safety Regulation 2017. The IN described the breach as follows: "Persons may be placed at risk of injury due reported inconsistencies in the operation of the Code Black system at Maitland Hospital - Mental Health Unit. Inconsistencies occurred during the period 19/01/22 to 23/08/22 as reported during consultation at the workplace on August 23, 2022. Specifically, the duress alarm/zebra phone system has on numerous occasions failed to initiate a Code Black Response due to technical grounds (remote signal/blackspot, handset failure) and the response time of Code Black Response team including Security staff for staff in the Observation Unit has been excessively long and as such has placed workers and others at increased risk of injury."
16. The IN issued the following "Directions as to the measures to be taken to remedy or prevent the contravention or likely contravention": "The PCBU is to undertake a detailed analysis of the operational effectiveness of the Code Black system at Maitland Hospital- Mental Health Unit in order to differentiate between technical duress alarm system failure, delayed response time due to lack of availability of security staff or Code Black response team unavailability (due to competing priorities) and the impact on Code Black Outcomes (e.g. minor abuse, physical assault, physical assault with sever outcomes) and response times. Where any identified deficiencies in the operation of the Code Black response are identified in the analysis the PCBU is to develop an action plan to address the identified deficiencies so far as is reasonably practicable."
17. The IN provided that compliance with the above direction was required by 3 October 2022, a month after its issue date.
18. On 16 September 2022, Ms Than requested an internal review of the cancellation decision. In a letter dated 15 September 2022, Ms Than set out the grounds upon which she sought a review of the decision, addressing Inspector Farmer's reasons for cancelling the PIN as set out above at [16].
19. The confirmation decision arising from the internal review was provided to Ms Than via email on Friday, 30 September 2022, by Ms Joanne Cocks, Acting Manager, Reviewable Decisions. This decision confirmed the cancellation decision and was accompanied by a Statement of Reasons. In the concluding paragraphs of her statement of reasons, Ms Cocks stated: "The issues raised by Ms Than are complex and were comprehensively conveyed by the Notice and internal review submission. The original decision, as set out in the inspection report issued on 2 September 2022, is similarly comprehensive. Having regard to the information provided in support of the internal review, however, I conclude that SafeWork NSW has grounds on which to cancel the provisional improvement notice issued to Hunter New England Health Local Health District by Ms Than on 27 June 2022 as it was unable to form the reasonable belief that the employer was contravening section 19 of the WHS Act in circumstances making it likely that the contravention would continue to be repeated."

The proceedings

1. The matter was listed for hearing on 8-9 May 2023. At the conclusion of the hearing, directions were made for the filing and serving of submissions in respect of what I have referred to as the "temporal issue". On 4 August 2023 the matter was listed for mention and a timetable for the filing of reply submissions made in favour of SafeWork.
2. SafeWork submitted that its role in the proceedings where it is has undertaken the role of an administrative decision maker are guided by the principles discussed by the High Court in R v Australian Broadcasting Tribunal exparte Hardiman [1980] HCA 13; (1980) 144 CLR 13, namely that the decision maker must maintain impartiality and the appearance of impartiality in proceedings challenging its decision.
3. While SafeWork announced its intention to not take an active role in the proceedings, it made extensive submissions with respect to the correct approach of the Commission in an external review.

The submissions

1. On 14 November 2022, Ms Than filed an outline of submissions, ("Than Outline of Submissions").
2. On 20 December 2022, SafeWork filed an outline of submissions.
3. On 20 January 2023, Ms Than filed an outline of submissions in reply.
4. On 13 March 2023, the LHD filed an outline of submissions.
5. On 11 April 2023, Ms Than filed an outline of submissions in reply.

Submissions with respect to the temporal issue

1. On 11 July 2023, the LHD filed a note on the temporal issue ("LHD temporal issue submissions").
2. Also on 11 July 2023, SafeWork filed a note on the temporal issue ("SafeWork temporal issue submissions").
3. On 31 July 2023, Ms Than filed a note in reply in respect of the temporal issue ("Than temporal issue submissions").
4. On 18 August 2023, SafeWork filed a note in reply in respect of the temporal issue ("SafeWork temporal issue submissions in reply").

The evidence

1. Ms Than relied upon the following written statements: 1. Statements of the applicant, Chit Chit Than filed 14 October 2022 (Ex A1), 14 March 2023 (Ex A2) and 11 April 2023 (Ex A3). 2. Statement of Ashley Paige Dobozy dated 11 October 2023: Ex A4. Ms Dobozy, is a Registered Nurse and Organiser at the NSW Nurses' and Midwives' Association ("NSWNMA"). 3. Statement of Christopher Burke filed 20 January 2023: Ex A5. Mr Burke is a Workplace Health and Safety Professional Officer within the Professional Services team of the NSWNMA. 4. Statement of Ben Morwitzer dated 11 April 2023: Ex A6. Mr Morwitzer is a Research Officer for the NSWNMA. 5. Statements of Ms Gail Anne Kane dated 11 October 2022 (Ex A7) and 11 April 2023 (Ex A8). Ms Kane is a Registered Nurse and Registered Midwife. She is also a member of the of the NSWNMA and an HSR.
2. Ms Dobozy, Mr Burke and Mr Morwitzer were not required for cross-examination. Ms Than and Ms Kane were cross-examined at the hearing.
3. SafeWork relied upon the following written statements: 1. Statement of Mr David Farmer, Principal Inspector within the Department of Customer Service - SafeWork NSW, dated 5 December 2022: Ex R1. 2. Statement of Ms Joanne Cocks, Coordinator, Reviewable Decisions, within the Community Engagement Division of the Department of Customer Service, dated 5 December 2022: Ex R3.
4. SafeWork also relied upon Exhibits to the statements of Mr Farmer (Ex R2) and Ms Cocks (Ex R4). This evidence was admitted without objection and neither Mr Farmer nor Ms Cocks was required for cross-examination.
5. The LHD relied upon the following statements: 1. Statement of Scott Oliver, Clinical Nurse Educator in the Maitland Mental Health Unit filed 13 March 2023: Ex D4. 2. Statement of James Sneesby, Nurse Manager at the Unit, filed 13 March 2023: Ex D5. 3. Statement of Darren Bowd, Registered Nurse and Service Manager for Hunter Valley Mental Health Service in the LHD, filed 13 March 2023: Ex D6. 4. Statement of David McLeod, Director of Nursing for the LHD, filed 13 March 2023: Ex D7. 5. Statement of Amanda Mavratzakis, WHS Coordinator - Mental Health Service for the LHD filed 14 March 2023: Ex D8. 6. Statement of Elizabeth Smith, Senior Facility Planner for the LHD, dated 13 March 2023: Ex D9.
6. Mr Oliver, Mr Sneesby, Mr McLeod and Mr Bowd were cross-examined at the hearing. Ms Mavratzakis and Ms Smith were not required for cross-examination.

Relevant Legislation and Principles

1. Pursuant to s 90(1) and (2) of the WHS Act, a HSR may issue a PIN if the representative reasonably believes that a person is contravening a provision of the WHS Act, or has contravened a provision of the WHS Act in circumstances that make it likely that the contravention will continue or be repeated. The PIN issued by Ms Than relied on the second of these limbs, identifying s 19 of the WHS Act as the provision that had been and was likely to again be contravened. Section 19(1) of the WHS Act provides: A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the person, and workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.
2. 'Reasonably practicable' is defined in s 18 as follows: In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including- (a) the likelihood of the hazard or the risk concerned occurring, and (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about- (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
3. A PIN also "may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention or the matters or activities causing the contravention or likely contravention to which the notice relates": s 93(1). It is an offence to not comply with a PIN within the time specified in the notice: s 99(2). If a PIN is complied with, it is not an admission by the PCBU that it has breached the WHS Act. There are no consequences to the PCBU of the PIN being issued if it is complied with.
4. An inspector appointed by SafeWork may review a PIN at the request of (among others) the person to whom it was issued: ss 100(1), 101. The operation of the PIN is stayed while that occurs: s 100(2). The inspector may confirm the notice, confirm it with changes or cancel it: s 102(1). A notice confirmed (with or without changes) by an inspector is taken to be an IN issued by the inspector under the WHS Act: s 102(2). The provisions in the WHS Act dealing with INs issued by inspectors relevantly mirror those dealing with PINs: ss 191 - 194.
5. An inspector's decision under s 102 is a reviewable decision under Pt 12 of the WHS Act: s 223(1), item 4. An eligible person, including the HSR who issued the PIN, may seek a review of that decision. Not being a decision made by SafeWork or its delegate, the eligible person must first seek an internal review: s 224(1). The internal reviewer may confirm, vary, or set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate: s 226(2). Again, an internal review application (with irrelevant exceptions) automatically stays the operation of the reviewable decision: s 228(1).
6. An eligible person may then apply to the Commission for an external review of the decision made on internal review: s 229(1). The Commission may stay the operation of a decision that is the subject of an external review pending a decision on the review: s 229(3). The Commission may confirm, vary, or revoke the internal review decision: s 229(4).

The nature of the Commission's review

1. An external review under s 229 of the WHS Act is a merits review, which requires the Commission to determine the correct and preferable decision standing in the shoes of the relevant decision-maker (in this case, Ms Cocks, the internal reviewer): Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (on behalf of its member Mick Amarasinghe) and WorkCover Authority of New South Wales [2012] NSWIRComm 143 at [50]; NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4; (2016) 257 IR 467 ("Rural Fire Service") at [70]; Sydney Trains v SafeWork NSW [2017] NSWIRComm 1009; (2017) 266 IR 276 at [28] ("Sydney Trains"); Transport Workers' Union of Australia, New South Wales v SafeWork NSW [2022] NSWIRComm 1050 ("TWU") at [44]. Thus, in this matter, the Commission is required to decide whether the cancellation decision of Inspector Farmer should be confirmed, varied, or set aside and substitute another decision that the Commission considers appropriate: s 226(2).
2. The Commission conducts a hearing de novo: a fresh hearing, with the capacity to receive evidence that was not before the original decision-maker: Sydney Trains at [16]; Rural Fire Service at [68]. The Commission's powers under ss 162 and 163 of the Industrial Relations Act 1996 (NSW) ("IR Act") apply.
3. The parties disagreed with respect to the relevant point in time for review by the Commission of the decision to cancel the PIN. This was referred to as the "temporal issue". This question of law raised by the parties is fundamental to the Commission's jurisdiction when conducting an external review pursuant to s 229 of the WHS Act. The issue raised is complex and of substance. It requires resolution before the merits of the review can be examined.

Submissions with respect to the temporal issue

1. Ms Than argued the correct approach in determining the review is to address the initial question: whether the PIN was validly issued. It was submitted that this requires, as a matter of jurisdictional fact, an analysis of whether a reasonable basis to hold the belief required by s 90(1) existed based on the objective facts at the time of its issue.
2. Ms Than submitted that secondly, the Commission must nevertheless make an evaluative judgement as to whether the correct outcome is to confirm, revoke or vary the PIN, and in this respect, it is permissible to have regard to subsequent events.
3. Ms Than argued that a determination that there is no contravention at the time the matter is considered by the Commission does not necessarily, "or indeed even easily, follow." She argued that Sedco Forex International Inc v NOPSEMA [2016] FWCFB 2066 ("Sedco Forex") cautioned against setting aside an otherwise validly issued notice so as to avoid proceedings becoming "a device to expunge a notice." Ms Than submitted that in any event, not all of the rectification steps have been taken and significant issues persist.
4. Ms Than submitted ([8] of Than temporal issue submissions): "The Commission ought to, in exercising its judgement, bear in mind that its role is supervisory and aimed at correcting process failures as much as anything else. The question, foundationally, is whether the decision should have been issued in the first place, and placing too much primacy on contemporary circumstances distracts from that task. The submissions at [12] [of LHD temporal submissions] in that respect - that one need not be concerned about overturning a valid notice in the context of a regulatory regime - are too glib, and are inconsistent with the authority in this and related jurisdictions as previously set out." (emphasis in the original)
5. SafeWork's position with respect to the temporal issue was that in determining whether the decision of Inspector Farmer made on 2 September 2022 to cancel the PIN was the correct one, regard can only be had by the Commission to the circumstances that existed at the time that decision was made. It was put that the correct approach was to assess whether Inspector Farmer (rather than Ms Than) should have had a reasonable belief that there was a contravention that was likely to continue, based on an objective evaluation of the information available at the time the decision was made. SafeWork relied upon the Full Bench decision in Safework NSW v Lipman Pty Ltd [2023] NSWIRComm 1034 ("Lipman") in support of its position.
6. SafeWork submitted that the Commission is able to receive evidence in respect of facts that occurred after the date of the decision under review, but only if they bear on the merits of the decision under review as at the time it was made. It was argued that this interpretation is consistent with the purpose of s 229 of the WHS Act and Pt 9 entitled "Securing Compliance". SafeWork submitted (at [8]-[11] of SafeWork temporal issue submissions): "8. …The scheme for improvement notices provided for in Part 9 is primarily concerned with avoiding risk to workers and ensuring compliance with the safety obligations of a person conducting a business or undertaking (PCBU). The regulatory scheme involves an assessment by a SafeWork Inspector at a particular point in time of whether the PCBU's safety obligations are being met. An inspector has power under s.191 to issue an improvement notice if they form the requisite reasonable belief that those obligations are not being met by the PCBU at that time… 9. The role of the Commission when reviewing an eligible decision made under s.229 of the WHS Act is plainly to review the decision on the merits. In doing so it may, as SafeWork concedes, receive relevant material that was not before the Inspector when he or she made the decision under review. However, to adopt a phrase used in other decisions which support the approach taken in Lipman, the Commission's task is to "go over again" the process of making the decision that the Inspector was required to make… 10. In SafeWork's submission, the Commission would be undertaking a quite different process from that which the WHS Act required the Inspector to undertake were it to review a decision made by reference to factual material remote in time from the Inspector's decision, or material that only became known at a future point in time. 11. In particular, it would undermine the integrity of the regulatory scheme for improvement notices if the Commission took into account evidence of improvements or remedial steps taken by a PCBU after the date of the Inspector's decision and in response to the directions and/or recommendations specified in the improvement notice. SafeWork relies on the statements made to this effect by a Full Bench of the Fair Work Commission in Sedco Forex International Inc v NOPSEMA [2016] FWCFB 2066 (Sedco Forex) at [42] and [45]-[47] when considering a similar WHS regulatory scheme." (Footnotes omitted, emphasis in the original)
7. SafeWork submitted that the regulatory scheme and its underlying public interest objectives would be undermined if PCBUs understood that they could engage in conduct warranting enforcement action (namely, the issue of an IN or a PIN) safe in the knowledge that, if and when they applied for an external review, they could reform their conduct prior to a hearing before the Commission such as to correct the contravention and have the validly issued IN or PIN set aside.
8. SafeWork referred to Commissioner Muir's decision in Killen v SafeWork NSW and NSW Rural Fire Service (No 3) [2022] NSWIRComm 1017 ("Killen") at [18], were he reasoned, referring to the decision Sedco Forex, that an external review should not be used to expunge a validly issued notice because the recipient of the notice had subsequently corrected the contravention. SafeWork argued that this approach is consistent with other authorities of the Commission, including Lipman at [40]-[41], Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002 ("Growthbuilt") and Razorback Glass v SafeWork NSW [2018] NSWIRComm 1074 ("Razorback Glass").
9. SafeWork submitted that there are some "limited" circumstances where the Commission may allow evidence of events post-dating the relevant decision to inform its review, for example, it may be appropriate in the context of determining whether the time allowed for compliance is in issue: [15] of SafeWork temporal issue submissions. However, it argued that fundamentally, the Commission is not empowered to issue (or re-issue) an IN based upon the evidence of the contemporaneous circumstances: [16] of SafeWork temporal issue submissions.
10. SafeWork submitted that the provisions focus their attention on the time at which the inspector forms their opinion and makes their decision as to a PCBU's acts and shortcomings, referring to [44] of Shi v Migration Agency Registration Authority [2008] HCA 31; (2008) 235 CLR 286 ("Shi"). In its submissions in reply on the temporal issue, SafeWork argued that there is a distinction to be drawn between the review process undertaken by the inspector and the decision which follows to either confirm (with or without changes) or cancel the PIN: ss 101, 102 (1) and 160(c) of the WHS Act. It was argued that this is consistent with the legislative scheme where the effect of a confirmed PIN is taken to be an IN issued by the inspector under the WHS Act, where such a notice can only be made if the relevant reasonable belief has been formed by the inspector after the steps have been taken as required by s 101, including attending the workplace and inquiring into the circumstances that are the subject of the PIN (see s 191 of the WHS Act): [21]-[22] of SafeWork temporal issue submissions in reply.
11. At the hearing, the LHD argued that the time for the Commission to evaluate whether there was a reasonable basis for the belief required by s 90(1) of the WHS Act is the time of the Commission's review rather than the time the PIN is issued or as SafeWork argued, at the time of the inspector's review. This submission was subsequently withdrawn by the LHD.
12. The LHD submitted that the Commission may take into account subsequent events in exercising its discretion as to whether to confirm, vary or revoke the decision being reviewed (and therefore whether the PIN should be confirmed, cancelled or varied).
13. The LHD argued it would be an artificial and arbitrary restriction on the reviewer's discretion to prevent them from taking into account events that have happened since the PIN was issued in deciding the appropriate outcome of their review. It was submitted that such a restriction would be contrary to the objects of the WHS Act which is protective, rather than punitive: see s 3(a) and (e) of the WHS Act and [6] of LHD temporal issue submissions. The LHD submitted that this approach is consistent with the nature of the review pursuant to s 229 of the WHS Act, concerned with identifying the correct and preferable decision on a de novo basis. The LHD argued that its approach is consistent with Sedco Forex and not inconsistent with Lipman, Growthbuilt and Razorback Glass, which did not address the issue of discretion.
14. With respect to Killen, the LHD argued that although Commissioner Muir did not address the principles to be applied in exercising the discretion, he did take into account the contemporary facts consistent with its position at [107]-[109]. Further, with respect to Sedco Forex, the LHD referred to [49] where the Full Bench accepted that it may be necessary to determine whether an IN applies in the present circumstances and in doing so, take into account contemporaneous facts, especially where there has been a significant change in circumstances. The LHD also noted the that Full Bench remitted the matter on the basis that the Commission at first instance did not "fully take into account the extent to which a contemporary assessment of the matter may lead to a decision to review the improvement notice as part of its ultimate disposition."
15. The LHD put that SafeWork's position that the relevant date for evaluating reasonable belief is the date of the Inspector's review is arbitrary and inconsistent with the capacity of the Commission to consider circumstances occurring after the issuance of the PIN, given the Commission is required to stand in the shoes of the internal reviewer. The LHD also argued that it is an ordinary feature of a merits review to overturn a decision made validly at the time.
16. Finally, the LHD submitted that it would not make sense and would be inconsistent with the objects of the WHS Act, to determine that the correct and preferable decision is to extend the operation of the PIN to the present circumstances of the LHD without regard to what those present circumstances are: [7] of LHD temporal issue submissions.

In whose shoes does the Commission stand?

1. SafeWork submitted that when conducting the review, both the Commission and the internal reviewer stand in the shoes of Inspector Farmer: [18]-[23] SafeWork Submissions in reply.
2. I agree with SafeWork that the Commission is required to review the decision of Inspector Farmer. Inspector Farmer was required to conduct a review of the PIN issued by Ms Than. He was required to consider whether it was validly issued. In reviewing the decision of Inspector Farmer, the Commission is required to do the same. Inspector Farmer was required ("must") to make a decision, "after" reviewing the PIN. He had three choices (s 102): 1. Confirm the PIN, 2. Confirm the PIN with changes, or 3. Cancel the PIN.
3. The effect of a decision to confirm the PIN with or without change is that the PIN to taken to be the IN: s 102(4).
4. Apart from stating that the inspector must make a decision after the review, the statute is silent with respect to the basis upon which the decision might be made. However, the context of the legislation supports the conclusion that the inspector can take into account the contemporary factual circumstances prevailing at the PCBU in making the decision pursuant to s 102. This is consistent with the requirements at s 101(1) and (2) that: 1. the inspector attends the workplace as soon as practicable after a request is made for a review; and 2. the inspector must review the PIN; and 3. inquire into the circumstances that are the subject of the PIN.
5. In deciding, as he did, whether the PIN was validly issued, Inspector Farmer was required to consider whether there was a sufficient basis upon which the HSR could form a reasonable belief as required by s 90(1). This can only be determined with reference to the facts that prevailed at the time the HSR formed the relevant belief.
6. However, the inspector must not only review the decision to issue the PIN. The inspector is required to then make their own decision. Section 102 makes no reference to the inspector needing to form the requisite "reasonable belief" as they would be required by s 191(1) in issuing a IN. However, it would be inconsistent with the legislative scheme of the WHS Act for an inspector to decide to confirm or vary a PIN where there was insufficient evidence to found a reasonable belief that the PCBU is either contravening the WHS Act or has done so in circumstances that make it likely that they will continue to do so.
7. In my view, in making their decision, the inspector is able to take into account the prevailing circumstances as they understand them to be at the time of making the decision. There is nothing in the text of the legislation that restricts the matters that can be taken into account by time in making their decision. This interpretation is consistent with the requirement that the inspector attend the workplace and inquire into the circumstances that are the subject of the PIN. It is consistent with the purpose of the WHS Act, the functions of the regulator and the functions and power of inspectors: see ss 3, 152 and 160. It is also consistent with the purpose of PINs and INs within the statutory scheme, being remedial not punitive, which I consider in greater detail below.
8. It is the decision on review that is a reviewable decision pursuant to s 223 of the WHS Act. In an external review, the Commission stands in the shoes of the internal reviewer, who in turn stands in the shoes of the inspector. The inspector was required to review the PIN. However, it is the decision, which is the outcome on review that is reviewable. The inspector's decision on review was to cancel the PIN. It follows that the circumstance that prevailed both at the time of the PIN as well as those at the time Inspector Farmer made his decision will be relevant to the Commission's review. However, for the reasons I will come to, there is no basis to find that in determining how the Commission will exercise its discretion in these proceedings, it is confined to consider the facts as they existed when the PIN was issued or the inspector's decision was made.

Can and should the Commission take into account contemporaneous factual circumstances in the review?

1. The determination of the approach to be adopted in an external review necessarily starts with a consideration of the terms of the legislation itself. Section 229 of the WHS Act provides: 229 Application for external review (1) An eligible person may apply to the Industrial Relations Commission for review (an external review) of - … (b) a decision made, or taken to have been made, on an internal review. … (4) The Industrial Relations Commission may, on an external review, confirm, vary or revoke the decision concerned.
2. There are two matters worth observing in respect of s 229(4). First, the word "may" in s 229(4) indicates that the Commission has a discretion with respect to whether it will "confirm, vary or revoke" the decision being reviewed. Second, there is nothing express in the legislation that states that the Commission is confined to considering the factual matrix as it is existed at the time the relevant decision is made in determining how to exercise its discretion.
3. SafeWork submitted that the word "may" was "not treated as significant or material" in the High Court decision in Frugtniet v Australian Securities and Investments Commissions (2019) 266 CLR 250 ("Frugtniet") and Shi in which s 43(1) of the Administrative Appeal Tribunal Act 1975 (Cth) was considered: [14]-[17] SafeWork submission on temporal issue in reply. In Frugtniet and Shi, the High Court found that in a review, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. Further the question is one of relevance with reference to the statute: Shi per Kiefel CJ, Keane and Nettle JJ at [15]; Shi at [142]-[143]. SafeWork referred the Commission to [143] of Shi where Kiefel J (as her Honour then was) stated: "Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time."
4. An assessment of whether there was the requisite reasonable belief pursuant to s 90(1) to issue a PIN contains a temporal element. However, this is only a pre-requisite to making the decision to issue the PIN. The WHS Act does not restrict the decision-maker in a decision on review of a PIN pursuant to s 102 to a historical consideration of the factual matters. The Commission is similarly unconstrained when reviewing the decision of Inspector Farmer. I reject SafeWork's submissions that the Commission is unable to consider facts occurring after the decision being reviewed in determining how to exercise its discretion, except it the limited circumstances it explained. This interpretation is supported by authorities including Sedco Forex, where this issue was comprehensibly explored in the context of analogous legislation.
5. In Sedco Forex, a Full Bench of the Fair Work Commission ("FWC") was considering the correct approach it is required to adopt as the reviewing authority in respect of an appeal under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) ("OPGGS Act"). The National Offshore Petroleum Safety and Environmental Management Authority ("NOPSEMA") issued Sedco Forex International Inc ("Sedco") with an improvement notice under s 78(I) the OPGGS Act. The improvement notice was issued on the basis that NOPSEMA believed that Sedco was contravening cl 9 (2)(e) of Schedule 3 of the OPGGS Act. Sedco applied to the FWC seeking revocation of the decision to issue the improvement notice.
6. Sedco contended that the Commission should determine the appeal based on the facts and law current at the time of the FWC's decision ("the current assessment"). NOPESMA contended that the FWC should determine the appeal based on the facts and law current at the time of the decision to issue the improvement notice ("the historical assessment"). At first instance, Commissioner Cloghan determined that a historical assessment was the appropriate method of determining the appeal.
7. On appeal from the decision of Commissioner Cloghan, the Full Bench stated that "the purported clear dichotomy between the current assessment and the historic assessment contended by the parties before the Commission was artificial and unhelpful": [38]. The Full Bench found that a failure to meet the pre-requisites for issuing an improvement notice, (including the requirement that the inspector found, on reasonable grounds, that the prohibition notice is necessary to remove an immediate threat), may give rise to a an issue of jurisdiction with respect to the power to issue to a notice at all, "but we do not think this by itself established a temporal element to an appeal against such a decision": [39]. After noting that the legislation itself does not disclose a specific temporal character in terms of the appeal, the Full Bench observed at [40]: "… Sedco advise that it seeks to appeal the original improvement notice so as to clear its name and record for the purpose of future tendering processes. The proposition that, having complied with an improvement notice, an appeal which is founded only on a current assessment must then mean that the improvement notice is revoked with effect from the date it was issued, would not appear to be consistent with an essential purpose of the OPGGS Act. Such an approach, if applied to that end, could have the effect of reducing the significance of the decision to apply an improvement notice in a circumstance where that notice has been complied with. Without implying any criticism of Sedco, the possibility that an operator against whom multiple improvement notices had been issued, but ultimately complied with, could then have those notices all removed through an appeal process must represent an inconsistency with the general duties of an operator expressed…."
8. The Full Bench also found that the capacity to affirm, vary or revoke an improvement notice must be applied with regard to the fundamental purpose of that notice: [41]. At [42]-[46] the Full Bench stated: "[42] The adoption of an exclusively contemporary approach to the review of improvement notices under the OPGGS Act creates the very real potential for notices which were validly and appropriately issued at a given point in time and which consequently identified potential safety failings, to be revoked as if they had not been issued without good reason. It may be entirely appropriate that the removal of the safety risk then properly requires the revocation of the improvement notice but, absent some assessment of the circumstances under which that notice was issued, an exclusively contemporary approach represents an incomplete and, in historic terms, a potentially misleading outcome in the case of improvement notice, of this kind. [43] A further factor derives from clause 78(4), (5) and (6) of schedule 3 of the OPGGS Act which establishes the term of an improvement notice. If the notice is complied with during its term, the improvement notice effectively ceases to have effect. In this case there is no dispute that Sedco complied with the notice and consequently, no dispute that, if the appeal reviews the circumstances only in current day terms, the improvement notice must be revoked. Consequently, any such review, undertaken on a strictly contemporary basis, must produce the same outcome. In effect, once an improvement notice has been complied with, an appeal against it must focus on whether or not it should have been instituted in the first instance. In contrast, an appeal against an improvement notice, or, for that matter a prohibition notice which is current under the OPGGS Act could result in a decision to revoke, alter or uphold the particular notice, based on the circumstances applicable at the time of that appeal. In this respect it is important to note that the decision in Rutjens was an appeal against a then current prohibition notice. [44] Consequently, whilst the proper application of the approach in Rutjens and Shi generally requires the FWC to reach a conclusion based on the circumstances applicable at the time it conducts its assessment of the appeal, we think it is incumbent on the FWC to review the circumstances under which the initial improvement notice was issued…. [45] In the circumstances here, a review based solely on a current assessment is at risk of simply being a device to expunge a notice. We think the primary issue which the Commissioner should have had put before him was to determine whether, based upon the material now before the Commission, the decision to issue the improvement notice was appropriate. This involves a consideration of whether Sedco was contravening clause 9(2)(e) of schedule 3 of the OPGGS Act. [46] Further, a strictly contemporary approach may lead to the inevitable conclusion that there would never be any value in granting an appeal because the notice no longer had any work to do. This would also have the effect of defeating the very notion of an appeal on merit as comprehended by that Act." (Footnote omitted, emphasis added)
9. In considering the disposition of the matter, the Full Bench determined that "whilst the task [of the appeal] will generally involve an assessment of the circumstances at the time of the review, where the notice being appealed against has already expired, any such appeal should be primarily directed at the circumstances which prevailed at the time the notice was issued": at [47]. At [51], the Full Bench stated: "[51] In this respect we think it is open to the FWC to decide if an improvement notice was validly (or invalidly) issued at the time, based upon all of the materials that are before the FWC on the appeal, and to determine whether the notice should be revoked or varied as the circumstances then require. In so far as the Commissioner's conclusion precluded the FWC from reaching a contemporary view about an improvement notice, having assessed its historical appropriateness, we think this reflects error."
10. The reasoning in Sedco Forex does not support SafeWork's position with respect to the temporal issue. The Full Bench in Sedco Forex expressly acknowledged that the usual course in a review is for the reviewer to consider the circumstances prevailing at the time of the hearing. It was the context within which the appeal arose that directed the Full Bench towards its approach in focusing its attention on the circumstances that prevailed at the time the improvement notice was issued. In contrast, this matter has been brought not by the LHD trying to clear its name, where the notice has expired and has no effect, but by the HSR, Ms Than. The LHD seeks to rely upon the contemporary circumstances of the workplace in the context of being an interested party and second respondent in these proceedings where the Commission is required to make the correct and preferable decision. The concern identified by the Full Bench in Sedco Forex in adopting a strictly contemporaneous approach does not arise.
11. I reject SafeWork's submission that by considering the actual circumstances at the time of the hearing, the integrity of the regulatory scheme for improvement notices is undermined. The purpose of PINs and INs is not punitive, but remedial. The jurisdiction to issue a PIN or IN is triggered by the formation of a reasonable belief of a contravention which is taking place or likely to continue or be repeated. By issuing a PIN or IN, the HSR or inspector is exercising a compulsive power, impacting upon the rights the PCBU otherwise has to operate its business. Sufficient evidence to hold a reasonable belief requires a lesser standard than evidence that is objectively capable of proving the fact beyond reasonable doubt, or on the balance of probabilities: Somerville v Chief Executive of Office of Environment and Heritage [2020] NSWCCA 93 at [60]-[62]. In George v Rockett [1990) HCA 26; (1990) 170 CLR 104 at p 116, the High Court said: "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture."
12. A PIN or IN may be challenged on the basis that, objectively considered, the reasonable belief could not have been held. This is an objection to the jurisdiction to issue the notice. The test of reasonable belief is objective, and the Commission is required to determine the circumstances which existed at the time of the decision under review: see Growthbuilt at [33]; [55]-[61].
13. If the PCBU decides to comply with a PIN or IN, it has no legal consequence under the WHS Act. However, it is an offence to fail to comply with a PIN or IN (ss 99(2) and 193). The purpose of PINs and IN is to facilitate the timely resolution of work, health, and safety concerns. It would be inherently unjust for a PCBU to be subject to punitive action based only on a "reasonable belief" of a contravention of s 19 of the WHS Act. It may be that a reasonable belief is held, but it is wrong and in fact, there has been no contravention of WHS Act. The narrowed criteria for issuing a PIN or IN, (a reasonable belief), underscores the significance and importance of the review processes.
14. In conducting a review, the Commission is concerned with making the correct a preferable decision: see above at [48]. It would be contrary to the objects of the WHS Act and impracticable to do so without receiving evidence in respect of the contemporaneous circumstances of the workplace. I reject the submissions of Ms Than as set out above at [54], including that that the Commission in exercising its judgement, should bear in mind that its role is aimed at "correcting process failure as much as anything else". There were no authorities cited by Ms Than to support this proposition and it is not consistent with the objects of the WHS Act and remedial nature of the regime allowing for PINs and INs.
15. Similarly, I reject the submissions of SafeWork that the scheme of the legislation would be undermined if the Commission took into account evidence of remedial steps taken by a PCBU after the date of the inspector's decision and in response to the directions and/or recommendations specified in a PIN or IN. This is not inconsistent with the decision in Sedco Forex, given the Full Bench was faced with different factual circumstances, including the appeal having been brought by the company against whom the notice had been made.
16. Given my findings with respect to the temporal issue, and the principle of comity, it is appropriate that I directly address the decision of Commissioner Muir in Killen. In the decision, is unclear whether the Commissioner considered the contemporaneous circumstances in deciding how to exercise his discretion: [107]-[109]. At [90]-[91] Commissioner Muir stated in the context of considering the PCBU's submissions: "Also, and again from the foregoing analysis, it is clear that the fourth submission of the second respondent, that it has improved its policies and procedures and added further resources to assist it to deal with risks posed by psychosocial hazards in its workplaces since the Improvement Notice was issued, also fails. Based on the Sedco Forex rationale, had the second respondent changed its procedures to better control timeliness of such investigations, I consider that I would have still been required to uphold the claim made on external review application, albeit the 'defect' had subsequently been rectified. However, I do not have any evidence of such a change having been made."
17. In my view, the decision in Sedco Forex would not have precluded the Commissioner from considering the contemporaneous factual matrix given the different context within which the PCBU sought to rely upon the evidence post-dating the PIN. Nor would it have required a particular outcome in deciding how the Commission would exercise its discretion in the review. As with this matter, the PCBU had not sought a review to clear its name, but was seeking to rely on evidence in the context of a review of a decision to set aside the PIN.
18. It is important to reflect that Inspector Farmer did not cancel the PIN without more. Consistent with the functions and powers of inspectors conferred by the WHS Act he made a number of recommendations to the LHD: s 160 of the WHS Act. He also issued an IN in respect of the duress alarm/Zebra phones. I agree with the LHD that it would be inconsistent with the scheme of the WHS Act to issue a PIN in respect of the same subject matter of the IN issued by Inspector Farmer: see [173] below.
19. In summary, for the forgoing reasons, the Commission can take into account the contemporary factual circumstances in conducting the review. The circumstances as they existed at the time the PIN was issued are relevant to the determination of whether the HSR had jurisdiction to issue the PIN at all. The Commission should exercise caution where the review process is being utilised for the purposes of expunging an otherwise validly issued PIN on the basis of steps subsequently taken to comply with it. The legislature has not created the review jurisdiction for the purposes of facilitating a PCBU's desire to "restore its reputation" for tendering purposes or vindicate the actions of an HSR in issuing a PIN at a particular point of time. The purpose of the legislation is to create safe workplaces. Where, as in this case, a review is sought in respect of a decision to cancel a PIN issued by an HSR, there is no reason why the Commission would exercise caution in considering steps taken both by SafeWork in making recommendations and issuing an IN upon the PCBU; and the actions of the PCBU to improve health and safety, in deciding whether to confirm, vary or revoke the decision on review.
20. Finally, the decision to issue a PIN or IN necessarily involves the exercise of a discretion. If an HSR or inspector reasonably believes that that there is a breach of s 19 of the WHS Act that is likely to continue, they are not obliged to issue a PIN or IN. Similarly, the Commission is reposed with a discretion. The utility of the Commission's decision in either confirming, varying or revoking the decision is a relevant matter to consider in the context of the Commission's exercise of its review function.

Consideration

1. The nurses working in the Unit are highly skilled professionals. Their work is challenging, requiring a blend of empathy, patience, and clinical experience. Their workplace is inherently risky. The witnesses who gave evidence in the proceedings agreed that the risk of violence exists, that it is serious, and that it is unable to be eliminated. The prospect of injury is real, not remote. Nurses have been injured in the line of duty at the Unit. Ms Than gave evidence of a work colleague losing nine teeth in an assault, suffering a fractured ankle and having fingers nearly severed in or around 2020: Than Ex A1 at [13]-[14]. The safety and well-being of nurses working the public health system is important. No-one should be injured at work if this is reasonably avoidable.
2. Where a risk in a workplace to the health and safety of a worker is unable to be eliminated, the PCBU's obligation is to ensure the health and safety so far as "reasonably practicable": ss 17(b), 19(1) of the WHS Act. "Reasonably practicable" is defined at as set out above at [43].
3. An assessment of what is "reasonably practicable" involves weighting of various conflicting factors. The determination is inherently subjective, constituting an impressionistic process where reasonable minds might arrive at different conclusions.
4. The Commission was referred to [35]-[47] of SafeWork v Buddco (2022) NSWDC 549, which considered the meaning of "reasonably practicable": "The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 (Slivak) at [37] per Gleeson CJ, Gummow and Hayne JJ. … The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J. The words "reasonably practicable" indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in the performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ. An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453. A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by a worker, but defendants must conduct operations on the basis that such acts will occur, and they must be guarded against to the fullest extent practicable. … The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) A Crim R 340 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga Underground at [130]. … Counsel for Buddco submitted that there were additional propositions of law which were applicable (MFI 9, pars 13, 15 and 16). The first submission was that where a defendant lays down a safe system of work, an assessment must be undertaken as to whether the defendant has done or omitted to do anything causally connected with the risk in question. The court must consider whether the manner in which the risk manifested was beyond the defendant's control: SRA (NSW) v Dawson [1990] 37 IR 110. Counsel for Buddco also referred to the decision of Judge Scotting in Orr v Cobar Management Pty Ltd [2019] NSWDC 224 at [226], [291] and [303]. This case involved a mine worker who consciously and deliberately acted in breach of the defendant's safety system. Counsel for Buddco also referred to my decision in Orr v Hunter Quarries Pty Ltd [2019] NSWDC 364 where I said at [342]: 'While a person conducting a business or undertaking must guard against the possibility that an employee may be careless or inadvertent in carrying out a task, there is a line to be drawn between such behaviour and the deliberate and unforeseeable flouting of rules in the workplace and the training given to employees.'

Ms Than's case

1. In final submissions, Mr Saunders of counsel, on behalf of Ms Than, succinctly summarised the position. It was put that the decision to cancel the PIN was wrong and that there was nothing in the contemporary circumstances which would warrant cancellation. Mr Saunders conceded that the date for compliance with the PIN should be varied. It was submitted that there was no reason to amend the requirement that the "employer, in consultation with staff and their representatives, must undertake a review of the risks to identify and assess their risks and mitigate the risks, as far as is reasonably practicable."
2. With respect to the balance of the "action to remedy or prevent the contravention" in the PIN, Mr Saunders submitted (Tcpt, 9 May 2023, p 15 (30)-(38)): "As I've said, the applicant's position for the reasons I've explained is the steps identified should remain, it should - it is appropriate for it to go further than consultation, particularly when clear views have been expressed, and the primary points are read fairly are three, no nurse works alone, in other words, the safety control, which means there's close to immediate assistance available for them, or that minimises the time before assistance is available is maintained. Secondly, that a model of care is developed with admission and exclusion criteria, which assists in the risk assessment process, and thirdly, duress alarms." (my emphasis)
3. In summary, I understand Ms Than's case to be that her PIN should be varied, with a new date of compliance, which directs the following actions to remedy or prevent the contravention she reasonably believes was occurring: 1. The LHD in consultation with staff and their representatives, must undertake a review of the risks to identify and assess their risks and mitigate the risks, as far as is reasonably practicable; 2. The LHD create a system of work that provides that no nurse will work alone in the Observation Area of the Unit; 3. The Development of a model of care in full consultation with staff with clear admission and exclusion criteria; and 4. The LHD ensure that the duress alarms are fully functional and able to summon a duress response at all times.
4. In respect of the second point above, Mr Saunders stated that his instructions were that "the points are the points", meaning the actions to remedy or prevent the contravention as contained in the PIN were maintained as set out above at [13], including that the Observation Area be staffed by at least three nurses at all times. However, at the hearing, Mr Saunders conceded "what I have to accept based on the evidence and what's read there is that what they are clearly directed at is developing a system of work, and it is open to the Commission to find that a more appropriate way of expressing that…": Tcpt, 9 May 2023, p 16 (22)-(26).
5. Ms Than gave direct evidence in respect of the health and safety issues at the Unit that she identified in her role as a HSR (see for example, Than Ex A1 at [17]-[27]).
6. Ms Than submitted that it ought to have been clear that although the PIN stated that she formed the reasonable belief on 19 January 2023, this was a reference to the date the contravention occurred, which she believed would continue: [23]-[24] of Than Outline of Submissions. Ms Than directly addressed the date she says she formed the "reasonable belief" in her evidence: Than ExA2 at [22]-[25].
7. She submitted that ([25]-[27] of Than Outline of Submissions): "On the material before the Commission, noting: a. the actual exposure to occupational violence, and the serious incidents that had previously occurred; b. the fact that as a matter of common sense, staffing levels which leave staff working in isolation with higher acuity patients c. the physical exacerbation of these issues in the new unit, notwithstanding previous complaints by staff; d. the uncontested fact that the key safety systems - i.e. duress alarms - do not in fact work; and e. the fact that these deficiencies are capable of being remedied; the Commission would be satisfied that Ms Than's belief that the District had not complied with its obligation per s.19 to ensure, so far as reasonably practicable, the health and safety of mental health nurses. Similarly, the evidence discloses extensive, albeit unsuccessful, consultation by the HSR in respect of these risks. Ms Than does not understand this to be in contest. As such, the Commission would be satisfied that the Notice was validly made."
8. With respect to the foundation for Ms Than to form a reasonable belief as required by the WHS Act, in his oral submissions, Mr Saunder's pointed to the evidence of the LHD not ensuring nurses did not work alone in the Unit: Tcpt 9 May 2023, p 13 (2)-(3). He submitted that the validity of the PIN hinges on whether Ms Than had a sufficient basis to believe that it was reasonably practical to do so. Mr Saunders submitted the Commission needs to answer the question: "Was there a sufficient basis for Ms Than to have reasonably believed that it's reasonably practical?": Tcpt, 9 May 2023, p 7 (48) - p 8 (3).
9. While Mr Saunder's emphasised the issue of nurses working alone, he also submitted that, at the time the PIN was issued, the duress alarm was "hugely defective": Tcpt, 9 May 2023, p 13 (2)-(3). I have taken this to be a submission that the Commission should take into account the functioning of the duress alarms as the basis for Ms Than's reasonable belief as required by s 90(1) of the WHS Act.
10. SafeWork did not make submissions with respect to whether the PIN was validly issued by Ms Than.

The LHD's case

1. Several of the LHD's witnesses gave evidence with respect to how the risk to health and safety is managed within the Unit to meet the requirements of s 19 of the WHS Act (Mr Sneesby Ex D5 at [7]-[14]; Bowd Ex D6 at [15]-[29]; McLeod Ex D7 [15]-[25]). The management of patient aggression is complex. It is not as simple as putting a safety guard on a bread slicing machine. The parties referred to the system of mitigating the risk in this context as the "Swiss Cheese" model. Using the metaphor, the holes in the cheese represent flaws in the control measures. However, with multiple measures in place and stacked on top of each other the holes are less likely to align, reducing the likelihood of the system failing.
2. Mr Sneesby, Nurse Manager of the Unit gave the following evidence with respect to the nature of the risk experienced in the Unit and the systems in place to manage violence (Sneesby Ex D5 at [7]-[14]): "Management of violence in the Observation Area 7. Patients in the Observation Area typically have a higher level of acuity than patients in the Open Area. Patients may be admitted to the Observation Area if they are a greater risk to others, have a heightened suicide risk or sexual safety vulnerability or there is a risk to their reputation in the Open Area. Violence and aggression is only one of the factors nurses consider and may not be the reason that a patient is in the Observation Area. Sometimes the Open Area is full and patients who would otherwise be in the Open Area have to go in the Observation Area. 8. Th​e Policy Compliance Procedure - 'Mental Health: Management of Patients in an Observation Area' dated 13 December 2018 (PCP)… and the Work Practice 'Mental Health: Management of Patients in an Observation Area' (Work Practice) require that the Observation Area be staffed by at least one Registered Nurse at all times. 9. Th​e PCP and Work Practice does not mean that a nurse is required to be in the Observation Area alone. However, it is not necessary for the Observation Area to be staffed by two nurses at all times. This is because the number of nurses required to be in the Observation Area at any one time should be determined based on patient acuity, patient presentation, patient risk factors and the skills of staff. … 11. In my experience, in an acute mental health setting there is increased risk of violence and aggression, which is higher than in other nursing settings. This is linked to a range of factors including but not limited to: symptoms of mental illness, intoxication, limitation of freedom and movement and patient behaviour and personality. Our job is often to contain patients when they do not want to be contained. This in itself often creates frustration, anger and aggression from our patients. This is why we have controls in place to address this risk. 12. In my experience as a nurse in mental health services, patient violence is not entirely unpredictable. I acknowledge that sometimes it is unpredictable. However, there are many factors a clinician can consider to determine the risk of patient violence. Dynamic factors include a patient's symptoms, particularly if they are presenting as paranoid, intoxication, seeking discharge, if the patient has had a life change or if there has been a medication change. Static factors include whether the patient has a history of violence towards staff (or other patients), whether the patient has been to prison, distrust towards the service and whether the patient has a history of trauma. Many patients that are admitted to the Unit are well-known to the staff who know their history. 13. Man​y practices and processes in the Unit are directed to managing and limiting patient aggression and to provide nurses with up-to-date information and tools for the care of patients who are at risk of aggression. The PCP and Work Practice both require that all patients transferred to the Observation Area should have a risk assessment and a management plan. Planning to minimise the risk to patients and staff and information sharing occur in the following ways: (a) Setting of risk levels: On admission to the Hospital the admitting doctor completes a patient's risk levels (being high, medium or low) in relation to absconding, aggression, suicide, self-harm, sexual safety or another form of vulnerability. If the patient has come through the Emergency Department (ED), an ED doctor will undertake this assessment, which will be re-reviewed by a doctor within the Unit within a few hours of the patient arriving if admitted during the day, or the next day if admitted overnight. These risk levels are indicated on the nurse handover sheet which lists all of the patients in the Unit. Handover sheets are printed out for all staff to carry around and refer to. Risk levels are also displayed on the patient journey board within the staff station. Nurses can increase the risk levels at any time but they often won't decrease the risk level unless a doctor has assessed the patient. A patient's risk ratings are always reviewed at the morning multi-disciplinary team meeting (MDT meeting), which occurs at 0830 every weekday morning. At the MDT meeting, doctors, nurses and allied health staff discuss each patient's risk ratings and whether they should be changed based on observations of their behaviour. Another time that the risk ratings are commonly reviewed is when patients are moved from the Open Area to the Observation Area. A nurse will often increase the relevant risk rating to reflect why the patient is being moved to the Observation Area. (b) Risk management plan: It is a requirement of the PCP and Work Practice that every patient in the Observation Area should have a risk management plan. Risk management plans assist nurses and other clinical staff in the day to day management of a patient and are a preventative measure used to assist in reducing the risk of patient aggression and violence. … Completed risk management plans are saved in a share drive accessible to all Unit staff. They are also printed and placed in the folder used to document a patient's physical and level of engagement observations. Previous risk assessments are retained on file and can be reviewed if a patient is re­ admitted. (c) Safety Huddle: Safety Huddles were formally introduced in the Unit in July 2022. Prior to this Safety Huddles were occurring, however not in the same structured way as was introduced in July 2022. They occur every weekday morning immediately after the MDT meeting and are attended by the same staff consisting of nurses, doctors, administration and allied health, as well as anyone who is going to be in the Unit that day including cleaning staff and students. While a patient's risk levels are reviewed at the MDT meeting, each risk is specifically discussed at the Safety Huddle. For example, if a patient is rated as a high risk of aggression a plan is discussed for the treatment of the patient that day - this could include measures like only approaching a patient in twos or if the patient responds better to one on one care. … (d) Nurse handover: Nurses provide a handover to the incoming nurse team at the commencement of each shift. During this handover risk ratings are set out on the handover sheet and should be discussed as well as any observations of the patient which are relevant to their presentation and care. … 8. If patient aggression occurs in the Observation Area, the following controls are in place to minimise the risk of harm to staff: (a) four egress points which are at either end of the Observation Area and through the interview rooms; (b) staff wear duress alarms and there are fixed duress alarms located in the interview rooms and the medication room which can summon a code black response - this is an internal emergency procedure which incorporates all staff on the Unit and security; (c) there is a seclusion room in which patients can be locked and observed; (d) patients can be directed to their own rooms; and (e) staff are trained in the Prevention and Management of Violence and Aggression (which includes situational awareness and instructions to retreat if required)."
3. Mr Bowd, Registered Nurse and Service Manager for Hunter Valley Mental Health Service in the LHD, gave additional evidence with respect to the role of "active nursing" in managing risks of violence as well as the development of a Risk Management Plan Tool developed between April and July 2022, with guidance by HNEMH Clinical Information and following Justice Health Clinical Risk Assessment and Management training: Ex Bowd D6 [23]-[24]; [26].
4. Mr McLeod gave evidence with respect to the Prevention and Management of Violence and Aggression training which nurses receive throughout their careers. He deposed that the training consists of a two-day course on de-escalation followed by a three-day course including personal safety and controlled restraint techniques. Mr McLeod gave evidence of the introduction of a program called "Safewards" into the Unit in 2023. He described the training as being designed to enhance the safety of the Unit by focussing on understanding triggers for aggression and developing effective communication skills to decrease hostility and conflict: McLeod Ex D7 at [21]-[22]. His evidence also included reference to the use of medications to minimise the risk of harm, the details of which are discussed during safety huddles: McLeod Ex D7 at 24.

Was there a jurisdictional basis for Ms Than to issue the PIN?

1. There was some ambiguity in respect of the date upon which Ms Than is said to have formed the belief that the LHD was contravening the WHS Act in circumstances making it likely that the contravention will continue or be repeated. The PIN states that the belief was formed on 19 January 2022. However, the PIN was issued on 27 June 2022. I accept that the submissions of Ms Than above that the correct date to evaluate if Ms Than could have had a reasonable belief is 27 June 2022. This is the only way to interpret the PIN.
2. I am of the view that there was a jurisdictional basis for Mr Than to issue the PIN on 27 June 2022. Having considered the evidence, I have decided that there was an objective basis upon which Ms Than could have formed the view that there was a contravention of s 19 that was likely to continue given the failure of the duress system to properly function at that time: see below at [161]. In making this finding, I am cognisant of, and have considered the submissions of the LHD that this was but one of a number of measures that were in place to reduce the risks associated with patient aggressions and violence. However, this was a fundamentally important aspect of that system of safety and protection. It would have been reasonably practicable for the LHD to take the steps it subsequently took to fix the system before the Unit commenced operation at the new facility. The LHD conceded there were difficulties that were being experienced with the Zebra Phones as at the time the PIN was issued.

Nurses should never be left to work alone

1. The issue of nurses being left to work alone was given primacy by Ms Than at the hearing of the matter. It was relied upon in terms of demonstrating the requisite reasonable belief at the time the PIN was issued and was pressed as a matter relevant to the Commission's exercise of discretion.
2. In practice, two Registered Nurses are rostered to work in the Observation Unit during morning and afternoon shifts. During the night shifts, nurses are not allocated to a particular area within the Unit but work in pairs. It was common ground that when two nurses are working in the Observation Area, there are occasions where one nurse is required to leave the area, for a range of reasons: see for example Than Ex A1 at [19].
3. The work practices in the Observation Area of the Unit are documented in the "Management of Patients in an Observation Area Policy" ("Work Practice"). The Work Practice provides, inter alia, the following: "Clinical Care in the Observation Area Observation Area Nurse staffing • Two nurses (including at least one RN) are allocated to work in the Observation Area each shift • Minimum one nurse in the Observation Area at all times, being a Registered Nurse • Nursing presence is always determined relative to its role in mitigating clinical risk and acuity and in discussion with the NUM/ICOS Maintaining nursing presence An ongoing nursing presence is essential in making the Area as safe as practicable. Support to ensure this occurs is available through • Discussion with NUM/ln-Charge of Shift to consider o Use of Code Black Nurse to cover o Other nurses on duty in a clinical role o NUM/ln-charge to cover, then if required • Discussion with Nurse Manager on duty to consider o Nurse Manager in temporary backfill role to NUM/ln-charge covering clinical role o Nurse Manager to also cover temporary clinical role • Additional nurses being added above base rostered shifts in response to measured, sustained demand by way of objective clinical assessment, including acuity, clinical risk and in relation to skill mix • Two nurses conduct visual observations of patients in bedrooms. Respirations must be able to be observed Clinical Risk assessment and management • A risk management plan addressing all the identified clinical risks is developed upon entry to the Observation Area (see Appendix B) • Documented assessments are required each shift consistent with prescribed observation levels and in reference to the patient's care plan AND risk management plan Clinical Review • The Clinical Team consists of at least two clinicians inclusive of a medical officer and a registered nurse • The Clinical Team reviews all patients daily, consisting of a discussion focused on current patient presentation, level of observation, SAGO review and clinical risks • The Clinical Team review is documented in the patient medical record • The medical officer sees patients face to face where: o clinically indicated e.g. change in presentation o there is a legal requirement, or o the patient requests to be seen • Nurses attend face to face medical reviews One medical review at a time to support nursing presence and maintain area safety at the same time"
4. The LHD made submissions that cl 53 of the Public Health System Nurses' and Midwives (State) Award ("Award") is relevant to the Commission's consideration of this issue. Clause 53 of the Award provides for the number of nursing hours per patient day to be allocated. Clause 53.ll(c) states: "The Association and the Ministry have agreed that staffing will be determined by the Nursing Hours Per Patient Day ('NHPPD') specified below, provided over a week, to determine the number of nurses required to provide direct clinical care. …"
5. The Award differentiates between different nursing settings according to workload. In respect of the work of the Unit, cl 53.ll (i) provides for a ratio of 6 hours of nursing care per patient. The LHD submitted that the Award documents the agreement between the parties with respect to the staffing arrangements. Further, as this has been endorsed by the Commission by the making of the Award, it is relevant to the Commission's assessment of what is reasonably practicable for the purposes of s 19 of the WHS Act. Mr Fuller for the LHD submitted (Tcpt, 9 May 2023, p 50 (34) - (49)): "…what is clear is that cl 53 of the award provides a detailed scheme for determining staffing arrangements for nurses, including in this unit. The principles contained in cl 53 include consideration of health and safety and clinical need, and the scheme contains a mechanism for resolving grievances about staffing which may include dispute resolution before this Commission. In my submission, it would be subversive of that scheme if the Commission were to, effectively, direct the district to increase staffing in the context of reviewing a PIN under the WHS Act. In effect, the Commission would be resolving a dispute about staffing outside the detailed mechanism in the award for doing that, which was agreed between the ministry and the union, as set out in the award, and the Commission would be resolving that dispute by making a direction, contravention of which would constitute an offence, which is a power well beyond the powers that the Commission could exercise in the context of resolving a dispute under cl 53. I don't say it prevents you from doing anything but I'd say it is a discretionary reason not to enter into making staffing directions"
6. The LHD made no submission with respect to whether the clause is binding on the parties: Tcpt, 9 May 2023, at p 50 (12)-(13).
7. Mr Saunders for Ms Than answered this issue by stating that what is being sought is an amended to the PIN about a specific way of allocating work, rather than the staffing levels (Tcpt, 9 May 2023, p 59 (44) - p 60 (9)). I understand this submission is made in the context of Mr Saunder's conceding that the Commission may consider making a requirement that no nurse work alone, rather than upholding the action required by the PIN to allocate at least three nurses to the Observation Area at all times.
8. Ms Than expressed concern in her evidence that the Open and Observation Areas of the Unit are counted as one area for the purposes of setting staffing numbers pursuant to the Award. She suggested that when staff move from the Open Area to the Observation Area, the LHD is leaving the Open Area short of staff: Than Ex A3 at [13]-[14]; [16]-[17]. This argument was not developed with reference to cl 35 of the Award.
9. Ms Than relied upon evidence of Mr Morwitzer to the effect that the Unit had fallen short of the rostered hours required in the Unit by the Award since 31 December 2018 to 31 October 2022, with the greatest shortfall in 2022 after the relocation to the new premises. The LHD objected to the evidence where Ms Morwitzer gave an opinion as to the operation of cl 35 and whether the Award had been complied with: Tcpt, 8 May 2023, pp 3-5. The evidence was admitted but on the basis that the relevant paragraphs would be read as an opinion or submission as to how the Award operates. However, the evidence was not given any context nor referred to by Mr Saunders in his closing submissions.
10. There was no evidence to support the LHDs argument that the Award represents an agreement with respect to staffing levels based on Work Health and Safety considerations. I agree with the applicant's submissions that the manner in which work is to be performed is a different issue to staffing ratios. The objects of the WHS Act are different to those contained in the IR Act, which are relevant to the making of an award. Clause 35 of the Award is of limited relevance to the exercise of my discretion.
11. As set out above at [12], under the heading, "Brief description of how the provision is being or has been contravened", the PIN provided: 1. "the physical safety and psychological wellbeing of staff are at risk due to the directions by senior management requiring workers to work in isolation in the MHU 'observation area', where there are high rates of physical and verbal abuse from patients"; and 2. "Management direction that one worker to remain in the observation area at all times, which necessarily results in staff working in isolation."
12. Ms Than claimed that nurses were being required to work in isolation as defined by the NSW Health Policy Protecting People and Property. NSW Health Policy and Standards for Security Risk Management in NSW Health Agencies ("Security Risk Management Policy") and the LHD was acting contrary to its own policy by not rostering to avoid this: (Than Ex A1 at [20]-[23]).
13. In her response to the LHD's evidence, Ms Than stated in respect of additional staff being made available in the Observation Area (Than Ex A3 at [18]-[21]): "There are some occasions when we can get a completely new additional staff member to work in the Observation Area so that we don't have to rob the Open Area. This is done by either calling in staff in the unit who are not rostered on to do overtime, or by recourse to the casual pool of staff maintained by the District. There are however a lot of occasions where we have wanted to get an additional staff member this way but cannot because none are available. It is also not uncommon for it to be difficult to borrow staff from the Open Area of the MMHU or elsewhere from within the unit (e.g. NUMs, Nurse in Charge, Allied Health Practitioners etc.) to fill gaps because those staff are too busy under their own workload to fulfill the request. It is the responsibility of the Nurse Unit Manager (NUM), in consultation with the Nurse Manager or other senior management, to decide whether this will occur. Some NUMs have a practice of favouring the taking of staff from the Open Area in these circumstances, and some instead prefer to get an additional staff member from another source. Staffing arrangements would be much more predictable and safer for everyone if there was an additional RN rostered for morning and afternoon shifts who was allocated to the Observation Area of the MMHU. That way we would always have at least two RNs available in that area of the unit at all times, and we would very rarely need to make an ad-hoc decision about whether we borrow a staff member from the Open Area leaving them short, or try to get a short notice additional staff member via other means."
14. Ms Kane is one of two Nurse Unit Managers ("NUM") working in the Unit. She gave evidence that (Kane Ex A7 at [18]-[29]): 1. She is required to relieve in the Observation Area regularly when a nurse is required to attend to particular tasks, such as obtain 'S8' medication. 2. Once a week to once a fortnight she is required to be the "third nurse" in the Observation Area. This has an impact on her capacity to complete her NUM work and she is required to do up to one and a half hours unpaid overtime and may need to skip her tea or meal breaks. 3. On very rare occasions, a third nurse has been staffed in the Observation Area, but his has an impact on the standard of care for the patients in the Open Area. 4. Nurses should not go into the Observation Area alone because it is unsafe and patients can "turn in a second". 5. There can be difficulties getting staff to relieve in the Observation Area when required for example, due to sick leave. In recent times, nurses have been required to work a double shift two or three times a week. 6. In or around March 2022, when one nurse was on a meal break and no-one able to assist, the other left the area to get a phone for a patient, and there was a suicide attempt. The nurse was reprimanded for leaving the area. 7. Night shift can be hard as there are fewer staff and sometimes nurses use seclusion to keep patients and staff safe.
15. Ms Kane gave the following evidence about having three nurses allocated to the Observation Area (Kane, Ex A7 at [22]; [26]): "When we have three staff members in the [Observation Area], we can have two nurses in the [Observation Area] and the third person who can come and go to do paperwork, interviews, ECGs, cover breaks and so on. We cannot complete paperwork in the [Observation Area] as it upsets the patients. It is not the NUM's job to cover breaks. This should be managed within the staffing profile. … Having two nurses in the [Observation Area] and one in the Nurses Station means we give faster, better care. We can be more responsive to patients' needs. When it has been very unsettled in the [Observation Area], we need two nurses in there, to keep reassuring the patients. The third nurse in the Nurses Station can assist the other two, for example, by quickly getting food or medication, to ensure the patient does not escalate."
16. Ms Kane gave evidence in reply to the LHD's statement with respect to the issue of working alone (Kane Ex A8): 1. She allocates the experienced staff to the Observation unit due to the higher needs of the patients, but this is not everyone's practice: [20]-[21]. 2. If the acuity in the Observation Area increases, the NUM's have been directed to get extra staff who are not already rostered on rather than "rob" a staff member from the Open Area of the Unit and leave it short: [22]. 3. When she is the NUM of shift, she asks/directs the second staff member rostered in the Observation Area to get her whenever their colleague may have to leave the floor: [22]. 4. She will cover nurses while they are on meal breaks and that this may occur at the expense of her own meal break. Sometimes day staff are unable to have a lunch break until after 2 pm: [23]. 5. There have been multiple occasions where she had been required to spend up to 3 hours of more in the Observation Area while a replacement nurse has been sourced when only 4 nurses arrive for a morning shift or 3 on a weekend: [24]. 6. It is often not easy to get additional staff to backfill unexpected gaps created by leave or where there is a need due to higher acuity of patients. On multiple occasions, two to three morning shift nurses have worked overtime on an afternoon, as there are no staff available to cover vacancies. She will then spend the majority of her shift helping the Observation Area: [25]. 7. When there are extra nurses available, she will place them in the Observation Area and this creates less delays, efficiencies for the Unit, better care for patients and ensures the unit runs a lot more smoothly and safely: [26]-[27]. 8. The Unit is at capacity more often than not: [30]; [44]. Mr Bowd's evidence with respect to his experience working the Observation Area is not typical because there were only 3 patients who were very settled being cared for at the time: [29]. 9. Patients in the Unit can be unpredictable, and their behavior can change quickly, within seconds. Risk assessment can identify triggers, but this can change quickly because of the nature of the patients' illnesses: [38]-[39]; [45]. 10. An extra nurse would be another set of eyes to notice if a patient is deteriorating: [40]. 11. It is not unusual for some patients to be marked two-person approach. The nurse may need to wait to find another person to approach the patient when this is required which is less than ideal: [41].
17. Mr Dobozy, is a Registered Nurse and Organiser at the NSWNMA. He gave evidence that (Dobozy Ex A4): 1. It is unsafe for a nurse to be left alone in the Observation Area: [15]-[16]. 2. Staff feel unsafe, vulnerable, and afraid in the Observation Area: [17]. 3. It is important to have a second nurse available at all times because they will have the ability to call for help where the first person is under duress: [17]-[18].
18. Mr Sneesby gave the following evidence for the LHD with respect to working alone in the Observation Area (Sneesby Ex D5 at [30]-[31]): "I am alone, without other nurses, in the Observation Area regularly. Each time, I assess it is safe for me to do so because I attend handovers of patients so I am aware of patient acuity levels. I also know that there are other staff nearby in the staff station, I have my duress alarm and I am confident in my ability to recognise risk and leave via one of the four egresses if I need to. I am also confident in my skills and training in de-escalating aggression. I always tell nurses in the staff station before I enter the Observation Area that I am about to enter, so that they can notify me of any situations of which I would not be aware and so they can observe me through the perspex glass as well as listen through the intercom between the staff station and the Observation Area. Bas​ed on my attendance at MDT meetings and Safety Huddles and my knowledge of the Unit, it is often acceptable to work in the Observation Area alone. If a second nurse is required in the Observation Area, it is often acceptable to remove a nurse from the Open Area to cover breaks and staff attending to other tasks in the Observation Area because it does not leave the Open Area short staffed. Patient acuity is lower in the Open Area and patients can be occupied by group activities. It is common practice for staff to leave either area at any time, for example, for lunch breaks, going for a walk with a patient and attending meetings."
19. Mr Bowd gave the following evidence about the staffing of the Observation Area at [32]-[38] of Ex D6: "The requirement for the Observation Area to be staffed by at least one Registered Nurse at all times does not mean that nurses are required to remain alone in the Observation Area if it is unsafe to do so. The number of nurses in the Observation Area at any time should be determined based on patient acuity, patient numbers, the risk assessment and risk management plan for each patient, and the skills matrix of the staff working. A plan for the staffing of the Observation Area should be made at the start of each shift, but this plan can change throughout the shift, depending on changes in the patients' conditions. For short periods when another nurse is leaving the Observation Area to complete other tasks such as laundry and collecting medications based on the assessment of the above matters, it will be safe for one nurse to be in the Observation Area by themselves. In these circumstances, it is unnecessary to have more than one nurse in the Observation Area. However, there may be circumstances when two nurses should remain within the Observation Area. If this occurs, and one of the nurses who is allocated to the Observation Area must leave the Observation Area, there is a plan set out in the Work Practice to replace this nurse. This plan includes discussing with the Nurse Unit Manager (NUM) the use of the Code Black Nurse (a nurse allocated to the Open Area), using other nurses who are on duty in a clinical role, the NUM providing cover and the Nurse Manager backfilling for the NUM. Using a nurse from the Open Area to provide cover in the Observation Area does not mean that the Open Area is understaffed. There are many staff and patient movements throughout the day, particularly during the day shift as part of routine ward business, which is coordinated by the NUM or ICOS, being a primary role of these positions. Decisions are frequently being made as to how to manage the required work, including supporting nurses to take breaks. The Open Area and the Observation Area are part of a single ward, and deployment of nurses to various parts of the ward relative to need is a fluid, ongoing and dynamic. If it is not possible to backfill the nurse from the Observation Area using the above options, additional nurses may be added. This could include additional shifts for part­time nurses, a casual nurse shift, or overtime. The Nurse Manager can and does routinely approve these requests. If it is anticipated it will be required, the plan for covering a nurse when they leave the Observation Area should occur at the commencement of a shift. However, if this was not anticipated and due to changes in patient presentation or acuity it is determined that two nurses should remain in the Observation Area but a nurse has to leave the Observation Area at short notice such that a nurse is or would be left alone in the Observation Area, the nurse in the Observation Area can contact the NUM or Nurse Manager using their Zebra phone. Alternatively, because the NUM is generally working in the nurses' station, a nurse can speak to the NUM using the intercom between the Observation Area and the nurses station or gesture through the window between the Observation Area and the nurses station to indicate the NUM should enter the Observation Area for a discussion. Finally, in the event that a nurse is alone in the Observation Area in an unsafe situation and there is no other practicable option, the nurse would not be expected to remain in the Observation Area. The ability to depart from the Work Practice is set out on page 6."
20. In addition, Mr Bowd gave evidence about working alone in the Observation Area that there are a number of controls in place to prevent harm from patient aggression, including staff training, the egress points, the personal duress system, the intercom between the Observation Area and nurses' station, the CT system, the convex mirrors: [40].
21. Mr Bowd gave evidence that two nurses in the Observation Area at all times is not necessary for safety and there would be times where this would be an inefficient use of the nursing resource. He gave evidence that the Work Practice allows for two nurses being present where it is required for safety, with no cap and that for some patients, having more people present may increase the risk of violence: [42].

Consideration of the issue of working alone

1. The requirement, as set out in the Work Practice is that "whilst the Observation Area is operating it will be staffed at all times by at least one Registered Nurse on the floor". I find for the avoidance of any doubt, that the requirement is directed at ensuring that at least one Registered Nurse is in the area at all times, rather than, for example, an Enrolled Nurse. It is not a direction that nurses work alone in the observation area, although the staffing arrangements operate in such a way that they can and do.
2. The evidence was consistent that there are times when it is not safe for a nurse to work alone in the Observation Area. However, I am not persuaded that it is never safe for a nurse to do so. The risk of a patient being aggressive or violent is dependent on many factors. The risk profile within the Observation Area is dynamic, changing with the patients and their circumstances. Given the small size of the Observation Area and the evidence that not all patients are predisposed to aggression and violence by reason of their illness or otherwise, I accept that there are times where the presence of two nurses in the Observation Area is unnecessary, for safety reasons.
3. I reject the submission put in Ms Than's evidence that when working alone in the Observation Area, a nurse is "isolated" as that term is understood in the context of the Security Risk Management Policy. Clause 26.1.9 of the Security Risk Management Policy defines 'isolated work' as work that is isolated from the assistance of other people because of the location, time or nature of the work being done. Ms Than gave evidence that the work is isolated as defined because (Than ExA1 17; [21]): 1. The staff in the Observation Area cannot be heard by colleagues outside the area, or in the nurses' station; 2. There is an intercom system however this sometimes fails; and 3. The Observation Area is behind closed and locked doors.
4. A nurse working alone in the Observation Area has the assistance of other people, including the other staff working in the Unit. There are a range of ways that the nurse is able to seek and obtain that assistance at any given time. This includes communicating through the intercom to the nurses' station and using the Zebra phone, which I have considered in greater detail below at [157]-[173]; and [184]-[188].
5. The conclusion that nurses working in the Observation Area are not working in isolation is supported by contrasting their working arrangements to the examples of isolated work in the Security Risk Management Policy. These include: 1. Unit location in a separate building; 2. A unit separated from other areas not occupied 24/7; 3. One worker in a location separated from their workers; and 4. Community or hospital-in-the-home workers alone with patients.
6. Point (2) above suggests that a unit separated from another area does not by itself constitute isolated work. This is a complete answer to Ms Than's argument that the closed and locked doors create an isolated work environment.
7. The LHD argued that an increase in the number of nurses does not necessarily lead to a safer working environment. This was the underlying premise of Ms Than's case that nurses should not work alone. Although Ms Than's witnesses gave evidence that it was unsafe to work alone in the Observation Area, citing examples of acts of violence, there was limited probative and objective evidence to support the conclusion that the risk of violence occurring is causally linked to the number of nurses in the unit. I agree with Ms Than that there being more than one nurse will likely reduce the response time in the event of an act of aggression or violence, but this would very much depend on the situation and would not necessarily always be the case.
8. I have paid attention to the evidence adduced in Ms Than's case that a patient may be risk assessed as unlikely to be violent, but this could change quickly and unexpectedly. However, I do not accept that this is a situation that materialises frequently, and I am satisfied that the measures the LHD has in place to understand that risk in respect of each patient on an ongoing basis are thorough.
9. There are times when it is unsafe to work alone in the Observation Area. The LHD has in place a documented Work Practice designed to identify when there is a need for additional staffing above the usual arrangements. Indeed, Ms Than and Ms Kane gave evidence of additional nursing staff being made available to the Observation Area when required. They also gave evidence of the difficulties they have encountered with "staffing up", for example, due to the non-availability of casuals and the requirement for nurses to work overtime. Ms Kane gave evidence that when she is required in the Observation Area, it has a flow on effect in terms of her workload, her capacity to take breaks and can require her to undertake unpaid overtime. I do not dismiss this evidence as unimportant from an industrial relations perspective. However, I consider these concerns to be people management challenges rather than safety issues that should be understood, worked-on and hopefully overcome. The solution of having an additional staff member rostered on to the Observation Area at all times, irrespective of the number of patients being cared for and their risk profile is a grossly disproportionate mitigation strategy.
10. Ms Than and Ms Kane both also gave evidence in respect of how the level of service and care would be improved if there was an additional staff member rostered on to the Observation Area at all times. This is no doubt correct. However, this does not demonstrate that there is a contravention of s 19 in circumstances that make it likely that the contravention will continue or be repeated. The LHD has document systems in place to increase staffing if there is a need to do so. For these reasons I would decline to vary the PIN to provide that the LHD create a system of work that provides that no nurse work alone.

Admission and exclusion criteria

1. Under the hearing "Brief description of how the provision is being or has been contravened", the PIN stated (as set out above at [12]): "Compounding all of the above, there is currently no admission or exclusion criteria for the unit, resulting in a level of patient acuity that cannot be safely managed. A model of care setting out clear admission and exclusion criteria would ensure that the ward is staffed appropriately for the acuity of patients admitted."
2. The PIN required the following action to remedy "the contravention": "Development of a model of care in the full consultation with staff with clear admission and exclusion criteria."
3. In his summary of reasons for cancelling the PIN, Inspector Farmer stated: "4. Some of the actions recommended to be taken were in the process of being implemented in consultation with workers, and HSRs prior to the PIN being issued- e.g. Draft Model of Care - Work Practice issued for consultation on 22/06/22 (email from Sam Dunn - Acting Clinical Coordinator) prior to the issuing of the HSRs PIN"
4. Ms Than gave evidence that at the time the PIN was issued (Than, Ex A1 [24]-[25]): 1. The Unit had no admission or exclusion criteria. 2. The Unit takes patients that is should not and who are unable to be safely accommodated. 3. The systems in place to transfer high acuity patients to the Mental Health Intensive Care Unit ("MHICU") at the Mater Mental Health Centre ("the Mater") are inadequate.
5. Ms Than stated (Than Ex A1 at [25]): "For a patient to be transferred to the MHICU at the Mater, the patient needs to be clinically reviewed, a discussion had with the consultant psychiatrist and then it is escalated to local management. We may have to leave the unit at times to argue with management about why patients should be transferred to the MHICU. We have patients straight from police cells who have assaulted staff and police on their arrival to the MMHU."
6. The Unit accepts patients who are experiencing acute mental health episodes, exhibiting very challenging behaviors. The treatment of those patients is the very purpose of the Unit. The Unit is required to accept involuntary patients detained under the Mental Health Act. It is not permitted to turn them away. Despite pressing the point, Mr Saunders conceded that "There's a lot of force, I have to accept, there's a lot of force to the submission of they have to go somewhere": Tcpt, 9 May 2023, p 16 (41). I accept the LHD's submission that it is not reasonably practicable to develop admission or exclusion criteria for the Unit that is inconsistent with its requirement to accept involuntary patients detained under the Mental Health Act. There is, however, capacity to move patients to the MHICU.
7. Mr McLeod gave evidence that is not practical or appropriate to implement admission or exclusion criteria for the Unit. In respect of transferring patients to the MHICU, he stated (McLeod at [35]-[36]): "There is a process in place for the transfer of patients to [MHICU]…. This is a clinical decision and requires the referring team and admitting team to discuss and the admitting consultant to accept care before the transfer can occur. However, this will not always be possible due to the availability of beds at the MHICU, the availability of ambulances to take the patient to the MHICU and whether it is safe to transfer the patient in light of their condition. If it is not possible, arrangements can be made for the patient to be appropriately cared for in the Observation Area of the Unit. This can include, where required, arranging for additional staff in the Unit. I have repeatedly advised staff including the Union Specific Consultation Committees that if staff consider that a patient should be transferred to the MHICU and the MHICU is resisting this, it should be escalated to the on-call Executive for review. As far as I am aware, this has not occurred."
8. Ms Than's reply to the LHD's evidence acknowledged that the Mental Health HNE LHD Mental Health Intensive Care Unit (MHICU) Referral Pathway ("Mental Health ICU referral pathway policy") provides for a process to transfer patients to the MHICU. However, she stated that a transfer to the MHICU does not happen quickly and is subject to numerous review steps at the MMHU level before the request for transfer may ultimately be made. Ms Than gave evidence the process "can at best take most of a day to be approved" and sometimes longer if there is disagreement between the facilities as to whether the patient can be transferred. Further, she gave evidence that it was difficult to transfer a patient unless there had been negative or dangerous event and there is a "wait and see" approach even when a patient was known to be violent. She also expressed concern that the patient remained in the Unit while the assessment took place and that there were a number of discretionary matters that influenced the decision to transfer: (Than Ex A3 at [30]-[36]).
9. Ms Kane acknowledged that the development of admission and exclusion criteria for the Unit would be difficult because of the LHD's obligations pursuant to the Mental Health Act: Kane Ex A8 at [31]. She stated that "I do think there could be more work done to better streamline the process of having appropriate patients transferred to the [MHICU]": [32]. She also gave evidence of the decision making to transfer patients to the Unit rather than the Psychiatric Emergency Care Centre ("PECC") by the Emergency Department, stating the PECC are often at capacity, unable to assist the Unit and instead send their patients to the Unit, who are usually high acuity: [35]-[36].
10. The documented process for patients to be transferred into the MHICU is contained in the Mental Health ICU referral pathway policy. This policy includes admission and exclusion criteria: DM-1 at p 4. This accords with the requirements of s 80(4) of the Mental Health Act which provides that a "transfer under this section is to be done in accordance with an arrangement between medical officers of each facility or an order in writing by the Secretary." I accept the frustrations expressed by Ms Than and Ms Kane with respect to the processes associated with a transfer of patients, including its timeliness.
11. To the extent that a patient presents as aggressive and violent, I am satisfied that the LHD has processes in place to create a safe system of work to appropriately mitigate these risks while a request for admission into the MHICU is considered. I have no evidence that the time taken to assess an application for transfer are inappropriate or avoidable, nor that any particular decision taken has been improper or wrong. I accept the respondent's submission that what is reasonably practicable in implementing the process of transferring patients will depends mainly on the capacity of the Mater (and the PECC) to accept a patient at a given time, which is outside the LHD's control: see also Sneesby Ex D5 at [58]-[60]; Oliver Ex D4 at [23]-[25]. That is not to say that the processes cannot be improved or better explained by the LHD to its staff impacted by the relevant decisions. However, I am not satisfied that the LHD is breaching the WHS Act by reason of not having a model of care that includes clear admission and exclusion criteria. For this reason, I will not confirm this aspect of the PIN.

Defective Zebra phones/duress alarm

1. The PIN provided the following with respect to the duress alarm, referred to interchangeably as the "Zebra phones" under the heading "Brief description of how the provision is being or has been contravened": "Duress alarm / "Zebra" phones not activating in certain locations of the observation area meaning staff may or may not be able to summon a duress response when required - compounding risks from working in isolation"
2. The PIN required the following action to rectify the duress alarm: "Ensuring that the duress alarms are full (sic) functional and able to summon a duress response at all times."
3. Although Inspector Farmer chose not to vary the PIN, he made the following recommendation in the Inspection Report under the heading "Advice provided to Duty Holder" (see [18] above): "I recommend that the PCBU streamline the reporting process for duress alarm concerns raised by staff to ensure that data is collected in a timely and accurate manner considering reports of inconsistent advice regarding reporting processes, and time constraints on staff in undertaking 'business as usual' care of patients and operational processes such as the use of IMS."
4. Further, Inspector Farmer issued his own IN in respect of the duress alarm as set out above at [19] - [21].
5. The LHD conceded that there were some technical issues with the Zebra phones when the unit commenced operating in January 2022 and that some of those issues remained when the PIN was issued. However, it was submitted that the scope of the issues should be considered in the context of the steps that have been taken by the LHD to resolve them. That evidence was principally led through the statement of Ms Mavratzakis, WHS Coordinator - Mental Health service for the LHD. Her statement attached a report prepared in response to the IN titled, "A Review of the Operational Effectiveness of the Code Black System at Maitland Mental Health Unit" dated 30 September 2022. Ms Mavratzakis also attached a further version of the report with an updated action plan produced in early December 2022 and provided to SafeWork. The report found the following "Technical Duress Failures" as at September 2022 (AM-2, pp 6-9): 1. Delays in response to times was substantiated. The report found that there were delays of up to 10-15 minutes before a notification of an alarm activation is received. This was sourced to a software issue which was resolved, with the frequency of delayed messaging significantly decreased, although not entirely mitigated. 2. The reported issue of black spots and disconnection was tested and not substantiated. 3. The reported issue of inability to view simultaneous notifications was tested and not substantiated. 4. Freezing of headsets was found to be occurring. The issue was tracked to small and potentially faulty batch of devices that were removed from service.
6. The report documented steps that had been taken to resolve the issue of the delayed response times. This included an increase in the role of Security staff at the Maitland Hospital, resulting in the appointment of additional full-time Security staff and the allocation of other staff as back-up responders to code black events. The report also documents enhancements to the duress system in a Pilot program.
7. The report included an action plan addressing the issues identified. Updates in the report, set out in the style of file notes, provided for the following: 1. Issues identified were tracked to a software problem that was rectified at the beginning of November 2022. 2. There were two issues identified in November 2022 in respect of the duress alarm associated with the fault in particular devices, including the Man-Down function not activating. The software provider was to adjust the Man-Down Algorithm on 19 December 2022. 3. The action items also identified that staff were not reporting issues contemporaneously and through the IMS system. A report of 9 November 2022 to Inspector Farmer states that staff had been educated on the requirement and importance of timely reporting of duress malfunctions and provided with a template to report such matters to assist with investigation and rectification processes. 4. The trial would continue until 31 January 2023.
8. Ms Mavratzakis' evidence was admitted without objection and she was not required for cross-examination.
9. In reply, Ms Than gave evidence that the frequency of the signal dropouts had reduced significantly. However, she stated that these still occur, and that she has experienced this herself and is aware of other staff who have as well. When cross-examined, Ms Than conceded that she had not reported a black-spot issue lately, despite understanding that a direction had been given by Mr Sneesby to do so if this occured: Tcpt, 8 May 2023, p 34. In re-examination, Ms Than explained that given the number of issues, she would be unable to get her work done if she "IMSed" all incidents: Tcpt, 8 May 2023, p 35. However, the evidence was that the LHD has provided a streamlined process of complaining about the Duress system, with Mr Sneesby emailing all staff on 20 October 2022 indicating that they could just email any issue to him: JS-13.
10. Ms Than also gave evidence of the Man-Down function being overly sensitive, causing less urgency in the responses and disturbing patients. However, when cross-examined, she gave evidence that the function can be deactivated within 10 seconds of an accidental alarm: Tcpt, 8 May 2023, p 33 (36)-(42). She also questioned the efficacy of the use of two-way radios given they are not directly connected to the hospital Security and require messages to be relayed through the Nurse in Charge. Ms Than also expressed concern that the two-way radios do not show how much battery is available so that they might run out unexpectedly (Than Ex A3 at [62]-[67]).
11. Ms Kane gave evidence that the issue with respect to the Duress Alarms persisted: Kane, Ex A8 at [49]-[53]. Her evidence was to the following effect: 1. Staff no longer trusted the Zebra Phones given the issues experienced since moving to the new hospital. 2. In August 2022, three doctors and one nurse were unable to activate a Code Black. 3. She expressed similar concerns with respect to the use of the two-way radios as Ms Than, stating that the double handling could be dangerous in an emergency. 4. The Man-Down function activating too easily, stating that this has caused a delay in responses to real incidents. 5. There are still spots in the Observation Area where the Zebra Phones lose service and they do not indicate this has occurred. 6. The Zebra Phones are not practical to set off in an emergency situation. 7. She had heard that the fixed duress alarms were not working "at one stage" but did not know if that was the case now.
12. Ms Kane conceded under cross-examination that she was not aware of how the Man-Down function was working at the time she gave her evidence, as she had not been in the workplace in approximately the 3 months prior to giving her evidence: Tcpt, 8 May 2023 p 33 (36)-(42). When cross-examined, she agreed that the Man-Down function could be deactivated in a qualified way by stating, "If the phone's working, yes": Tcpt, 8 May 2023, p 56 (33).
13. As already stated, the LHD conceded that there were issues with respect to the operation of the Zebra Phones at the time the PIN was issued. However, significant efforts have been made by the LHD to not only fix the issues experienced with the duress system, but to enhance the it. The LHD examined the issue of the Zebra Phones dropping-out and it was not substantiated. There were no specifics provided by Ms Than, nor Ms Kane of when these had occurred.
14. Where Ms Kane gave an example of a Code Black notification failure, it related to an August 2022 incident, prior to the report being produced by the LHD in compliance with the IN and actions being taken to fix the issues. The uncontested evidence of Ms Mavratzakis was that on 7 March 2023, adjustments were made to the existing Man-Down function to enhance it. These included increased angle detection and improved sensitivity and that the Man-Down function would continue to be monitored: Mavratzakis at Ex D8 at [22] (see also AM-2 at p 12). This evidence demonstrates that the LHD has taken steps to resolve the issue of the Man-Down function activating too readily.
15. I agree the two-way radio system is not as effective as the Zebra Phones for the reasons stated by Ms Than and Ms Kane, but these were an additional measure provided to nurses while the concerns raised about the Zebra Phones were addressed.
16. Ms Kane's evidence with respect to the impracticality of making a duress call on the Zebra Phones is vague. I am not in a position to determine if that issue is real, although it seems somewhat inconsistent with the evidence that the Mad-Down function is activated too easily.
17. I am not reasonably satisfied that the LHD is now contravening the WHS Act because of issues associated with the duress alarm/Zebra Phone system. There is no specific evidence of a reported issue with the Zebra Phones that post-dates the work undertaken by the LHD to resolve the issues, as set out in the statement of Ms Mavratzakis. Given the instructions and encouragement provided to staff to report such matters, I am not satisfied that the issues identified in Ms Than's case are ongoing: see for example, Sneesby Ex D5 at [65]. While there were issues with the system at the time the PIN was issued, I can see no reason to uphold the PIN in respect of the duress system for the reasons referred to in Sedco Forex. In this regard, it is relevant that Inspector Farmer issued an IN to address the duress alarm issues on the same day he decided to cancel the PIN. For these reasons, I decline to vary the PIN to provide that the LHD ensure that the duress alarms/Zebra phones are fully functional and able to summons a duress response at all times.

Other health and safety issues raised by Ms Than

1. Ms Than principally relied upon the issues of nurses working alone, the development of a model or care with inclusion and exclusion criteria and the functioning of the duress alarms: see above at [101]. However, Ms Than maintained her case on the basis that a range of other issues in the Unit. These included: 1. The lines of sight within the Observation Unit, including line of sight into bedrooms or seclusion unit from the staff station; 2. No dedicated real-time monitoring of CCTV; 3. Soundproof wall and defective intercom.
2. I consider these in turn below.

Lines of sight and CCTV

1. At Attachment A of the PIN, under the heading, "Brief description of how the provision is being or has been contravened", the PIN included the following: "Minimal line of sight through observation area, particularly from the nurses' station, further escalating risks from working in isolation CCTV cameras identified as a control measure for line of sight issue, however there is no staff member to monitor the footage to observe any escalation in risk, so it is an ineffective measure."
2. Inspector Farmer made the following recommendation in his report, as set out above at [18]: "(1) I recommend that the PCBU initiates the operation of the 4d person location technology and initiate a trial of its operation in the Observation Ward in consultation with workers as soon as is reasonably practicable. ….. (4) I recommend the PCBU investigates potential blind spots and line of sight issues for workers within the Observation Area's Lounge/Activity Room (who do not have access to CCTV display whilst working within the Observation Area), principally in front of the Observation Area's isolation room and corridor and consider the installation of fixed concave mirrors that after assessment may address the risk."
3. The issue raised by Ms Than in respect of the line of site and the operation of the CCTV are interconnected. These are measure in place to facilitate the active monitoring of patients in the Observation Area. Ms Than's concerns with respect to lines of sight and CCTV were described in her reply statement as follows (Than Ex A3 at [69]-[71]; [75]): "Staff have raised concerns with respect to the lines of sight within the new MMHU ever since the first construction plans for the unit were shown to them in 2021. The new MMHU has a larger footprint than the previous location within the old Maitland Hospital. This combined with the layout of the open floorspace, patient bedrooms, and outdoor courtyard space, means that not all locations within the unit have open lines of sight into them. The view from the Nurses' Station into parts of the Observation Area, and into parts of the Open Area of the unit, such as the areas containing the patient's bedrooms and the hallway leading to them, is particularly problematic. In order to protect our own safety and that of the patients under our care though, we do need to try and keep track of patients when they enter or exit their own bedrooms, or those of other patients, how long they might have been in those rooms. To date the MMHU has had numerous patients raise allegations of sexual assault against other patients, and/or allege that other patients have entered their rooms without their consent and remained in there. For some of these instances I am aware that the patient in question entering the room of the other patient has been caught on CCTV when viewed after the fact. On most, if not all, of these occasions, lines of sight within the unit have been inadequate to allow staff to notice the interaction in question occurring in real time. ….. The CCTV used in the MMHU actively records what is going on within the unit at all times, however the live footage is displayed on a screen in the Nurses' Station, and no one is tasked to watch the footage live as it comes in. Because no one is usually watching it live, and staff working on the floor of the MMHU outside of the Nurses' Station don't have access to the screen, it is ineffective as an observation or risk control measure within the MMHU, particularly for the Observation Area."
4. In support of the need for lines of sight from the nurses' station, Ms Than sites as an example an occasion where she was assaulted when she went down the hallway to the patient's bedrooms in the Observation Area to engage with that person and was trapped in the bedroom: [72]-[74]. Ms Than expresses her concern that she would not have been heard or seen if there was not another Registered Nurse on the floor.
5. Ms Sneesby gave evidence that the line of sight in the Observation Area is not problematic when the other control measures referred to in these proceedings are employed. He gave evidence with respect to: 1. The installation of mirrors in November 2022 to allow nurses to see patients in the lounge room to the corridor with another to be installed so that nurses can see either side of the door when they leave the medication room. 2. The identification and resolution of a CCTV blind spot in early 2022. His evidence was that there are now no CCTV blind spots. 3. See-through glass doors looking into the Observation Area allowing to see down the corridor before entering. 4. The introduction of Lighthouse technology to further support staff by providing alerts regarding patient activities, ensuring comprehensive monitoring even when nurses are not in direct line of sight. As at the date of the hearing, the technology had not yet been installed: Tcpt, 8 May 2023, p 32 (18).
6. Mr Oliver gave evidence of an example of how he might use the CCTV when Acting NUM in the Unit: Oliver Ex D4 at [17]. He stated that as the Acting NUM he had two desks one of which was in the Nurses' Station. He would regularly glance through the windows to the Observation Area and look at the CCTV from time to time. No one is tasked to always look at the CCTV.
7. There is infrastructure in place giving lines of sight across the Observation Unit. There was evidence of lines of sight being improved in various ways within the Observation Unit since the PIN has been issued. Ms Than has identified an ongoing issue with line of sight from the nurses' station, down the corridor of the Observation Area. It was not clear from the evidence what might be involved from a practical perspective in resolving this. However, in my view, the fact that there is not a direct line of sight from the nurses' station to the corridor does not create an unsafe system of work, when considered in the context of the other measures in place including the provision of CCTV of that area, the continuous risk assessments of patients and the availability of more than one nurse if required. There is usually more than one nurse in the Observation Area, and the second nurse can monitor the location of the first in person or by CCTV if that is considered appropriate. The foreshadowed introduction of 4d technology will provide an additional safety and monitoring tool.
8. The LHD's evidence demonstrates that they have taken reasonably practicable steps to improve the monitoring of patient's movements. I do not hold a reasonable belief that the LHD is breaching s 19 of the WHS Act in respect of this issue. That is not to say Ms Than did not hold a reasonable belief at the time she issued the PIN. The fact that the LHD was able to implement mirrors to address the issue of the line of sight suggests that it was reasonably practicable to do so. However, as I have outlined at length, the contemporary circumstances of the Unit are in my view, relevant to the exercise of my discretion in this matter. I am not satisfied that the LHD is contravening s 19 of the WHS Act in respect of the line of site and CCTV issues raised.

Soundproof wall and defective intercom

1. At Attachment A, under the heading, "Brief description of how the provision is being or has been contravened", the PIN included the following: "sound proofing installed for the obs area resulting in staff working in the nurses' station being unable to hear any calls of distress or shouts of aggression - whilst there is a sound system to transmit sound from the observation area into the nurses' station, it switches off after a couple of minutes at a time, so staff need to remember to continually switch it back on."
2. Ms Smith gave uncontested evidence that during the design process, it was identified that a fire wall was required between the Nurses' Station and the Observation Area. It was also identified that this requirement would decrease the sound transmitted between the two areas and that a continuous intercom would be required to resolve this: Smith Ex D8 at [13].
3. There were issues with the intercom switching off when it was first installed. However, I accept the evidence that this issue was addressed. Mr Sneesby gave evidence that since the problem with the intercom switching off was resolved, (which he stated he was not aware of until the PIN was issued), he has not received any complaint about its functioning: Sneesby Ex D5 at [57]. This evidence was not contested.
4. Ms Than gave the following evidence in respect of the intercom in reply to the LHD's case (Than, Ex A3 at [58]-[59]): "I have noticed though that even when it remains on, the sound through the intercom can be muffled or subject to interference from other sources and equipment within the Observation Area. For example, it can be difficult to hear a staff member in the Observation Area clearly when they are standing away from the intercom microphone when patients are situated between the staff member and the microphone are talking. Sound over the intercom as heard within the Nurses' Station is also prone to being drowned out a bit if the television in the Observation Area is switched on, which it often is. It is also important to understand that when staff are in the Nurses' Station they are usually there because they need to complete work that it is either not possible, or not appropriate to do in either the Observation Area or the Open Area of the MMHU. This is usually work that requires some degree of quiet and concentration to perform, or involves confidential medical information, for example completing patient notes. I have often seen the volume of the intercom switched down to a low level in the Nurses' Station or muted entirely so that it does not act as an undue distraction when this work is being performed."
5. I agree with the LHD that it is not reasonably practicable to install a non-compliant wall between the Observation Area and the nurses' station. It is also not reasonably practicable for the LHD to resolve issues with the intercom if these are not raised through the appropriate channels. It is not reasonable to expect that the sound quality through an intercom will be the same as speaking directly to someone. Ms Than's evidence was also confusing to understand. On the one hand she describes the intercom sound being muffled or subject to interference, making it difficult to hear clearly. However, she also states that the volume is often switched down or muted to avoid work distraction on account of it being too loud. I am satisfied that the nurses would be able to hear yelling or an altercation through the intercom if it is on, although the exact words spoken may be muffled as Ms Than described in her evidence. I do not understand the purpose of the intercom to convey audio of the same quality as if a person was being spoken to directly. The evidence is that it functions insofar as it can amplify an alert for assistance from the Observation Area. There is not a reasonable basis to conclude that the LHD is breaching s 19 of the WHS Act because of the fire wall and the intercom system in place.

A generous reading of the PIN?

1. While unnecessary for the disposal of this matter, I am compelled to make comment on a submission made with respect to the reasons I should vary the PIN. It was put that in conducting the review, I should be mindful that Ms Than is a nurse and HSR representative and not a SafeWork inspector. Consequently, Mr Saunders submitted that the terms of the PIN should be given a generous reading, but a lack of clarity might justify a variation by the Commission: Tcpt, 9 May 2023, p 10 (23)-(32). I am sympathetic of the fact that Ms Than, genuinely concerned about the health and safety of nurses working in the Unit, was faced with the difficult task of drafting the PIN given the number and complexity of the mitigation strategies in place. However, in circumstances where a failure to comply with the PIN is an offence under the WHS Act, its terms should be clear and capable of being complied with. This includes the basis upon which the decision has been made to issue the PIN, as well as the actions required to rectify it.
2. It is unnecessary for me to fully explore those issues given my findings but note the following. There was some ambiguity as to the date upon which Ms Than formed her reasonable belief: see above at [113]. The basis of the PIN being issued was left open ended with a statement that the unsafe systems of work included "but are not limited to", before listing the specific concerns set out above at [12]. The PIN gave the LHD just 8 days for compliance, which included undertaking a review of the risks to identify and assess and mitigate those, as far as is reasonably practicable, fixing the duress alarm, introducing a new system of work that provided for three nurses to be in the Observation Area at all times; and the development of a model of care in full consultation with staff with clear admission and exclusion criteria. This was an unrealistic timeframe within which those tasks could be attended to meaningfully. There were real questions in respect of the capacity of the LHD to ever be able to comply with some of the steps required as I have outlined in the context of the development of admission and exclusion criteria. Some of the language in the PIN could be viewed as tempered. I do not make these observations to be critical of Ms Than. I do so to explain that a variation of the PIN as sought by Ms Than would have required a significant departure from its original form and content.

Conclusion

1. For the reasons I have set out above, standing in the shoes of Ms Cocks, the internal reviewer, I have decided the correct and preferrable outcome is to confirm the decision of Inspector Farmer to cancel the PIN. I have decided that Ms Than's decision to issue the PIN was within power. That is to say that objectively considered, there was a reasonable basis upon which she could have concluded that the LHD was contravening s 19 of the WHS Act in circumstances that make it likely that the contravention will continue or be repeated, as I have explained above at [113] - [114].
2. However, the objective facts do not provide a reasonable basis to believe that the LHD is contravening or is likely to continue or repeat a contravention of s 19 of the WHS Act as at the time of the hearing. This is a matter relevant to the exercise of my discretion in the review.
3. There has been a comprehensive canvassing of the risks within the Unit and it is not necessary or appropriate at this time for there to be a further review. The LHD's evidence demonstrates that there are processes and systems in place for the HSRs and nurses to raises issues and concerns with respect to the safety of the Unit on an ongoing basis.
4. For these reasons, I have decided to confirm the decision of Ms Cocks, confirming the decision of Inspector Farmer to cancel the PIN.

Orders

1. I make the following order: 1. The decision arising from an internal review requested by Ms Than undertaken by Ms Joanne Cocks, SafeWork NSW, dated 30 September 2022, which confirmed the original decision of Inspector Farmer to cancel the provisional improvement notice issued by Ms Than, issued 27 June 2022, is confirmed. Janine Webster COMMISSIONER

Amendments 22 December 2023 - 1. Minor typographical error at [93]. 22 December 2023 - 1. [90] - Minor typographical error. 2. [136] - Minor typographical error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2023